Com. v. Marsicano, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JOSEPH MARSICANO
Appellant No. 1047 MDA 2014
Appeal from the Judgment of Sentence April 16, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003916-2012
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MAY 06, 2015
Anthony Joseph Marsicano appeals from the judgment of sentence
entered on April 16, 2014, in the Court of Common Pleas of Luzerne County.
Following a non-jury trial, Marsicano was found guilty of possession with
intent to deliver marijuana, possession of a controlled substance –
marijuana, possession of a controlled substance – cocaine, and possession of
drug paraphernalia.1 The trial court imposed an aggregate sentence of one
day to 18 months’ incarceration and a consecutive six-month probationary
term, and granted immediate parole. The sole issue raised by Marsicano in
this appeal is “[w]hether [the] Trial Court erred in failing to suppress the
physical evidence found in [Marsicano’s] apartment as a result of a
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1
35 P.S. § 780-113(a)(30), (a)(16), (a)(16) and (a)(32), respectively.
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‘[p]rotective [s]weep’ performed by members of the Hazelton City Police
Department.” Marsicano’s Brief at 1.2 Based upon the following, we affirm.
We set forth the court’s findings of facts and those conclusions of law
that specifically relate to the issue of the “protective sweep”:3
FINDINGS OF FACT:
1. On September 24, 2012, Anthony Pacelli, a resident of a
first floor apartment located at 1017 East Broad Street,
Hazleton, Pennsylvania, telephoned the 911 operator to
complain of an odor of marijuana in the building. (N.T. 6)
2. Anthony Pacelli recognized the odor as marijuana from his
work assignments. (N.T. 7)
3. Anthony Pacelli believed the odor of marijuana was
emanating from the basement apartment, although, he
could not make a definite determination.(N.T. 7; 9-10)
4. The basement apartment was occupied by the defendant
Anthony Marsicano. (N.T. 7; 15)
5. Lt. Leonard and Officer Tray of the Hazleton Police
Department responded to the basement apartment on
September 24, 2012. (N.T. 32)
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2
Marsicano timely complied with the order of the trial court to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, after
the trial court granted Marsicano an extension of time to file the concise
statement. Marsicano’s Rule 1925(b) statement is reflected on the trial
court’s docket, and is numbered on the docket sheet for purposes of the
certified record, but is missing from the certified record. A copy of the
concise statement appears in the reproduced record.
3
The trial court’s findings are based upon the testimony provided at
Marsicano’s preliminary hearing conducted on November 8, 2012, which was
the only evidence submitted for the suppression hearing on June 17, 2013.
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6. Upon arrival the officers knocked on the door of the
apartment and [Marsicano] answered. (N.T. 32)
7. Lt. Leonard detected the extremely pungent odor of
marijuana emanating from the basement apartment. (N.T.
32)
8. While speaking with [Marsicano], Lt. Leonard could hear
someone in the rear of the residence. When questioned
about the noise, [Marsicano] denied there was anyone else
in the apartment. (N.T. 33)
9. Lt. Leonard testified that [Marsicano] appeared to be under
the influence of a controlled substance. (N.T.33)
10. While speaking to [Marsicano], Lt. Leonard observed a
bulge in [Marsicano’s] right pocket. (N.T. 33)
11. While in the presence of Lt. Leonard [Marsicano] made
repeated movements of his hand toward his pocket. (N.T.
34)
12. As a result of his experience Lt. Leonard was aware that
drug dealers often carry guns. (N.T. 34)
13. The presence of the bulge in [Marsicano’s] pocket and the
movement of [Marsicano’s] hand toward the pocket caused
Lt. Leonard to fear for his safety and as a result Lt.
Leonard conducted a pat down search of [Marsicano] for
weapons. (N.T. 34)
14. The presence of the bulge, the strong odor of marijuana
and the noise coming from the apartment caused Lt.
Leonard to suspect that there may be drug dealing going
on in the apartment. (N.T. 33-34)
15. During the pat down Lt. Leonard detected a sandwich-size
bag in [Marsicano’s] pocket which he recognized from his
experience to be marijuana (N.T. 34)
16. When Lt. Leonard attempted to remove the packet from
[Marsicano’s] pocket, [Marsicano] forcibly grabbed the
officer’s hand. (N.T. 35).
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17. At this point [Marsicano] was placed in handcuffs. (N.T.
35)
18. Lt. Leonard continued to hear noises in the apartment and
noticed a figure, at which point he directed the individual
to come forward and in response, Morgan Marcillio came
out of the kitchen area. (N.T. 35)
19. Upon discovery of Ms. Marcillio, Lt. Leonard did a
protective sweep to determine if anyone else was in the
apartment. (N.T. 36)
20. During the protective sweep, Lt. Leonard opened a [living
room] closet door; observed a Benson & Hedges gym bag,
partially open, with green vegetable like substance, which
he recognized to be marijuana. (N.T. 36)
21. [Marsicano] was then taken into custody and transported to
Hazleton Police Department where a search of his person
revealed five small clear plastic baggies containing
suspected cocaine. (N.T. 37)
22. The items where [sic] field tested and results were positive
for marijuana and cocaine. (N.T. 37-38)
CONCLUSIONS OF LAW:
….
5. Probable cause alone will not support a warrantless search
or arrest in a residence ... unless some exception to the
warrant requirement is also present ... Commonwealth v.
Santiago[,] 736 A.2d 624, 631 (Pa. Super. 1999)[,]
quoting Commonwealth v. Governs[,] 632 A.2d 1316,
1322 (Pa. 1993); Commonwealth v. Johnson[, 68 A.3d 930(Pa. Super. 2013)].
6. The Pennsylvania Supreme Court has recognized the
exigency created by the existence of hidden third parties
during an arrest. Commonwealth v. Taylor[,] 771 A.2d
1261 (Pa. 2001) citing Commonwealth v. Norris[,] 446
A.2d 246 (Pa. 1982).
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7. The noises heard by Lt. Leonard coupled with the
appearance of Ms. Marcill[i]o after [Marsicano] claimed to
be alone created the exigency of hidden third parties
during an arrest. Such exigent circumstances warranted
the officers performing a protective sweep of the various
rooms to make sure no one else was present.
Commonwealth v. Johnson[, 68 A.3d 930 (Pa. Super.
2013)].
8. One well-recognized exception to the warrant requirement
is the protective sweep which is “a quick and limited
search of premises, incident to an arrest and conducted to
protect the safety of police officers and others[.]” Maryland
v. Buie[,] 494 U.S. 325, 327 (1990); Commonwealth v.
Taylor[,] 771 A.2d 1261 (Pa. 2001); Commonwealth v.
Bostick[,] 958 A.2d 543 (Pa. Super. 2008)[.]
9. The Benson and Hedges bag which contained suspected
marijuana was found in plain view during the protective
sweep. Commonwealth v. Johnson[, supra], [Cf.]
Commonwealth v. Galvin[,] 985 A.2d 783 (Pa. Super[.]
2009)[.]
10. The contraband in the Benson and Hedges bag was
lawfully seized.
Trial Court Order, 7/10/2014.
At the outset, we state our standard of review:
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. The suppression
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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. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa.
2010), cert. denied, 562 U.S. 832, 131 S. Ct. 110, 178 L. Ed. 2d
32 (U.S. 2010) (citations, quotations and ellipses omitted).
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining
a ruling on a pre-trial motion to suppress. See In the Interest
of L.J., 79 A.3d 1073, 1083-1087 (Pa. 2013).
Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2013).
Marsicano states, “[u]nder the Pennsylvania Constitution ‘protective
sweeps’ for persons must be supported by articulable facts and inferences
giving rise to a reasonable suspicion that the area to be swept harbors [an]
individual posing danger to the police.” Marsicano’s Brief at 8, 11 (citation
omitted). In this regard, Marsicano contends:
The [lieutenant] proceeded on an “inclination” the “possibility”
that something may go wrong. This clearly does not meet the
Constitutional requirement that First: the Pennsylvania
Constitution guarantees individuals freedom from unreasonable
searches and seizures; Second that [w]arrantless searches and
seizures are unreasonable per se, unless conducted pursuant to
a specifically established and well-delineated exception to the
warrant requirement; Third in a private home searches and
seizures without a warrant violate the Fourth Amendment absent
PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES. Neither
factor is alleged or set forth in the instant case.
Marsicano’s Brief at 11 (emphasis in original).
In Commonwealth v. Crouse, 729 A.2d 588 (Pa. Super. 1999),
appeal denied, 747 A.2d 364 (Pa. 1999), this Court explained that properly
conducted protective sweeps violate neither the Fourth Amendment of the
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United States Constitution nor Article I, Section 8 of the Pennsylvania
Constitution. Generally, a warrant is required for a lawful search of a
premises; however,
[i]t is well settled that “[u]nder emergent circumstances,
protective sweeps are a well-recognized exception to the
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.
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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, 1281–1282 (Pa. Super. 2013),
appeal denied, 83 A.3d 415 (Pa. 2013).
A properly conducted sweep is for persons.
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.
Crouse, supra, 729 A.2d at 598.
Upon review, we conclude that the evidence of record supports the
trial court’s factual findings and the court’s conclusions of law are correct.
Upon Marsicano’s arrest in the threshold/hallway of the residence, 4 pursuant
to the “first level” of a protective sweep, the police officers could
automatically “look in closets and other spaces immediately adjoining the
place of arrest from which an attack could be immediately launched[.]”
Potts, 73 A.3d at 1281. Furthermore, the evidence in this case
demonstrates that Lieutenant Leonard had “articula[ble] specific facts to
justify a reasonable fear for the safety of himself and others,” thereby
warranting a “second level” protective sweep that exceeded the areas
immediately adjacent to the location of the arrest. Id. at 1282.
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4
See N.T., 11/8/2012, at 35.
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The noise the officers continued to hear after Marsicano’s arrest
coupled with the emergence of another person from the kitchen area, after
Marsicano had claimed there was no one else in the apartment, provided an
adequate basis for the officers to suspect that other people might be
concealed in the residence. This exigency permitted police to check areas
that might harbor other potential attackers further away from the arrest.
Potts, 73 A.3d at 1282; see also Crouse, 729 A.2d at 598 (protective
sweep of second floor of residence was permissible because in course of
executing arrest warrant on first floor, police became aware that there were
persons on the second floor hidden from view). The evidence shows that the
protective sweep in this case was quick and was limited to spaces where a
person could hide. See N.T., 11/8/2012, at 50. Therefore, Lieutenant
Leonard lawfully opened a full-size door in the living room, finding a small
closet behind, wherein marijuana was in plain view in a partially unzippered
Benson and Hedges bag.5
Although the purpose of a protective sweep is to assure officer safety,
police officers are not required to ignore contraband they encounter in the
course thereof. Potts, 73 A.3d at 1282 (“If, while conducting a protective
sweep, the officer should … discover contraband other than weapons, he
clearly cannot be required to ignore the contraband, and the Fourth
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5
See N.T., 11/8/2012, at 50.
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Amendment does not require its suppression in such circumstances.”);
Crouse, 729 A.2d at 593 (evidence observed in plain view during a
protective sweep is admissible).
As the officers had articulable facts to believe that there was a
concern for their safety, the protective sweep was permissible. Accordingly,
we find Marsicano’s argument presents no basis upon which to disturb the
trial court’s denial of Marsicano’s motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
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