Com. v. Goodis, M. ( 2023 )


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  • J-A06037-22
    
    2023 PA Super 136
    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    MICHAEL GOODIS                               :
    :
    Appellant               :   No. 701 WDA 2021
    Appeal from the Judgment of Sentence Entered January 8, 2021
    In the Court of Common Pleas of Westmoreland County
    Criminal Division at No(s): CP-65-CR-0001278-2017
    BEFORE:      MURRAY, J., SULLIVAN, J., and COLINS, J.*
    CONCURRING OPINION BY SULLIVAN, J.:                FILED: July 28, 2023
    After careful consideration of the record and the narrowly-construed
    case law regarding the “knock and announce rule” and its exceptions, I am
    constrained to join the majority opinion because the Commonwealth’s
    evidence did not strictly comply with the rule or neatly fit into its carved-out
    exceptions. However, I write separately to emphasize that the actions of the
    law enforcement officers in serving the warrant in this case complied with the
    general principles of the rule by balancing Goodis’s privacy interests and the
    officers’ personal safety concerns in a situation where the officers perceived a
    legitimate safety risk. This balance is borne out by six videos from Goodis’s
    own security cameras which were admitted by stipulation at the suppression
    hearing. See N.T. 7/20/18, at 6, Exhibit A, Videos 1-6.
    ____________________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-A06037-22
    This Court is bound by the trial court’s findings of fact so long as they
    are supported by the record, but it reviews questions of law de novo. See
    Commonwealth v. McMahon, 
    280 A.3d 1069
    , 1071 (Pa. Super. 2022)
    (citing Commonwealth v. Yandamuri, 
    159 A.3d 503
    , 506 (Pa. 2017). When
    the Commonwealth prevails at the suppression hearing, the Court may only
    consider the evidence of the Commonwealth and so much of the evidence for
    the defense as remains uncontradicted. See 
    id.
     The Court’s scope of review
    is limited to the suppression hearing record. See 
    id.
    The knock and announce rule requires that before entering a dwelling
    to execute a search warrant police must announce their identity, purpose, and
    authority and give the occupant a reasonable period of time after the
    announcement to admit them, absent exigent circumstances that require
    immediate forcible entry.     See Pa.R.Crim.P. 207; Commonwealth v.
    Frederick, 
    124 A.3d 748
    , 754-56 (Pa. Super. 2015).          The rule seeks to
    prevent resistance by an occupant to protect his privacy, prevent violence and
    physical injury to police and occupants, protect an occupant’s privacy
    expectation, and prevent property damage resulting from forced entry.     See
    Commonwealth v. Carlton, 
    701 A.2d 143
    , 146 (Pa. 1997).                 Exigent
    circumstances permitting non-compliance with the knock and announce rule
    include situations where the police have reason to believe that an
    announcement prior to entry would imperil their safety. See Frederick, 124
    -2-
    J-A06037-22
    A.3d at 755.      The remedy for a knock and announce violation is always
    suppression. See id.
    As Goodis’s own surveillance videos establish, his house is in a rural
    area and Officers David Lepovsky and Brian Sadlowe, and Lieutenant Robert
    Jones, who went to Goodis’s house to execute the search warrant needed
    thirty seconds to walk a long pathway from the street to the house in full view
    of Goodis’s security cameras. See Exhibit A, Video 1 at 0:00-0:30. A separate
    video shows that before approaching the front door, the law enforcement
    officers conducted a search of the perimeter of the house and garage. See
    Exhibit A, Video 2 at 0:00-0:56. Officer Lepovsky testified that none of the
    officers saw any evidence to suggest that anyone was in the house. See N.T.,
    7/20/18, at 9-11.1
    ____________________________________________
    1 The police exercise of caution before approaching the house comported with
    the protection of both Goodis and the officers, who face an increasing risk of
    ambushes from citizens particularly when they go to serve arrest or search
    warrants          at         citizens’        residences.                 See
    https://cbsnews.com/philadelphia/james-oconnor-hassan-elliott-
    philadelphia-police-swat-officer-shot-and-killed-while-serving-warrant-in-
    frankford/ (last viewed July 20, 2023) (reporting that Philadelphia Police
    Officer was killed while serving warrant at suspect’s home);
    https://www.cbsnews.com/sanfrancisco/news/gilroy-police-officer-involved-
    fatal-shooting-ambush-wanted-attempted-murder/ (last viewed July 20,
    2023) (reporting that a man called police purportedly to surrender on an
    attempted murder charge, then opened fire on an officer who arrived at the
    address       to      which         he     had        summoned        police);
    https://www.charlotteobserver.com/news/local crime/article248942479.html
    (last viewed July 20, 2023) (reporting that two FBI agents attempting to
    execute a search warrant were killed when a gunman opened fire from inside
    (Footnote Continued Next Page)
    -3-
    J-A06037-22
    Another third video shows that in apparent response to a knock, Goodis
    looked at the kitchen door window toward the three officers, who stood in the
    sunlight. Goodis, who was wearing a shirt, held up his right finger signaling
    the officers to wait and disappeared from the officers’ view. See Exhibit A,
    Video 4 at 0:08-0:10, N.T. 7/20/18, at 12. Officer Lepovsky opened the
    unlocked door and from outside the house and stated, “Hey, Buddy, are you
    alright?”   Goodis stated, “Yeah, I’m good,” and returned to the uniformed
    officer’s line of vision. Still outside the house, Officer Lepovsky said, “Hey
    come here, come out here and talk to me.” See id. at 0:10-0:16. Goodis
    again held up his finger, said something inaudible, and again disappeared from
    the officer’s sight. See id. at 0:12-0:18.
    Officer Lepovsky said, “Okay, alright,” he drew his gun, pointed it at the
    ground, and slowly took four steps toward the kitchen.              Goodis put on
    sweatpants.     See id. at 0:17-0:22.          Officer Lepovsky asked, “Are you by
    yourself?” Goodis returned to the officer’s line of sight and answered, “Yes.”
    With his gun still pointed down, Officer Lepovsky said, “I don’t like, I don’t like
    it when you walk away from me, you know what I mean? I see you holding
    up one finger and then you walk away.” Goodis took two steps toward the
    officer. See id. at 0:23-0:31.
    ____________________________________________
    his home having monitored the approach of agents with a doorbell camera
    and shot them through the unopened door with an assault rifle).
    -4-
    J-A06037-22
    Officer Lepovsky kept his gun pointed at the ground, gestured for Goodis
    to join him, backed up, and said, “Come on out here, I’m going to put this
    back here,” referring to his gun, and asked, “What’s your . . . name” as he
    stepped outside of the house and replaced his gun in its holster.       Goodis
    followed him and answered, “Michael.”      See id. at 0:31-0:36.     As Goodis
    reached the door, Officer Lepovsky introduced himself from outside the
    residence.   See id. at 0:36-0:38. Officer Sadlowe and Lieutenant Jones
    introduced themselves and Lieutenant Jones answered Goodis’s questioning
    about how he was doing by saying, “Good. I’m here because I have a search
    warrant for your residence today.”     Goodis answered, “Okay.”      Lieutenant
    Jones stated, “I’ll let you read everything. You’re not under arrest at this
    point.” See id. at 0:46-0:49.
    Plainly, Officer Lepovsky never aimed his gun at Goodis and once the
    safety concern of Goodis’s disappearances from his sight dissipated, the officer
    backed up, put his gun away, and left the house, leading to a discussion at
    the door among Goodis and the three officers without any search having taken
    place. After the conversation at the doorway, Goodis is seen ushering the
    police into the house and showing them a computer in a backpack at the
    kitchen table. See Exhibit A, Videos 5 and 6. Tellingly, there is no show of
    force and the conduct appears entirely consensual. However, although I agree
    with the trial court that an overly technical approach to the knock and
    announce rule is inadvisable where the police conduct is reasonable and the
    -5-
    J-A06037-22
    purpose of the rule has not been offended, that is not the law. Here, testifying
    more than two years after the event, none of the officers could say with
    certainty that they had announced their identity and purpose prior to entry2
    and Officer Lepovsky did not have a pre-existing safety concern, and that is
    what the current case law focuses on.3
    The exclusionary rule is intended to deter illegal police conduct and
    protect against unreasonable searches and seizures. See United States v.
    Calandra, 
    414 U.S. 338
    , 347 (Pa. 1974); Commonwealth v. Edmunds, 
    586 A.2d 887
    , 899 (Pa. 1991). Those purposes are not furthered by the result in
    this case.    I agree with the trial court’s assessment that the police had a
    legitimate concern for their safety, see Trial Court Opinion, 9/13/18, at 5. We
    should not have the strict letter of the rule swallow up good, commonsense
    responses to law enforcement’s legitimate safety concerns, but the case law
    ____________________________________________
    2 The microphone from Video 4 did not fully capture sounds made outside the
    house while the door was closed.
    3  Notably, the videos from Goodis’s own security cameras contradict his
    suppression hearing testimony that he emerged naked from his shower and
    saw people standing outside, and did not have any clothing on, and further
    that he walked to his left into the kitchen upon seeing the police “to at least
    get a t-shirt and some boxers on, and before I . . .. Before I was able to do
    anything, I was basically being held point blank at gunpoint in my kitchen.”
    See N.T., 1/29/18, at 22-23 (intervening question omitted). Exhibit A Videos
    3 and 4 show that Goodis was not naked at the time of the police entry but
    wore a shirt, boxer shorts, and socks. Further, footage from Video 4 shows
    that Goodis was not “basically being held point blank at gunpoint” in his
    kitchen; Officer Lepovsky kept his gun pointed to the ground at all times. See
    Video 4 at 0:17-0:36.
    -6-
    J-A06037-22
    in this area is clear enough to warrant reversal despite my reticence. Because
    the case law concerning the safety exception in knock and announce cases is
    well developed in this Commonwealth and the facts here do not comply with
    the narrow exception, I concur in the majority opinion.
    -7-
    

Document Info

Docket Number: 701 WDA 2021

Judges: Sullivan, J.

Filed Date: 7/28/2023

Precedential Status: Precedential

Modified Date: 7/28/2023