Com. v. Azinger, M. ( 2024 )

J-A23027-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARC CHRISTOPHER AZINGER :
:
Appellant : No. 1543 MDA 2023
Appeal from the Judgment of Sentence Entered October 12, 2023
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000078-2022
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 22, 2024
Appellant, Marc Christopher Azinger, appeals from the judgment of
sentence entered October 12, 2023. We affirm.
On December 25, 2021, at approximately 11:00 p.m., a passerby, Bryce
Noon, reported a single-vehicle accident on Crossroads Drive in Union County,
Pennsylvania to the Pennsylvania State Police (“PSP”). In particular, Noon
indicated that he observed “an overturned Ford F-150 pick[-]up truck laying
on its passenger’s side.” Trial Court Opinion, 4/10/14, at 2. Noon, with the
assistance of another individual, helped the sole occupant, later identified as
Appellant, out of the pick-up truck.
Troopers Dustin Spangler and Kyle Phillips of the PSP responded to the
scene of the accident at approximately 11:20 p.m. Appellant was no longer
at the scene. Accordingly, the troopers ran the Ford F-150’s license plate and
determined that Sherri Showers was the registered owner of the vehicle and
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that she lived along Hollow Road in Lewisburg, Pennsylvania, located only one
mile away from the scene of the accident. The troopers proceeded to Showers’
Hollow Road residence and arrived at approximately 11:50 p.m. At that time,
Showers, who was observed pacing back and forth in the kitchen, came out
of her residence and proceeded to the front porch to meet the troopers. Upon
approach, Trooper Spangler asked Showers “who was operating the vehicle?”
N.T. Suppression Hearing, 1/6/23, at 9. Showers responded: “He [is] inside
sitting on the chair.” Id. Showers then went “back over to the door [and]
opened the door” for the troopers. Id. Trooper Spangler encountered
Appellant and noticed that “he had difficulty sitting in the chair,” “thick, slurred
speech,” and “a very strong odor of alcohol emanating from his person.” Id.
at 10. As such, Trooper Spangler asked Appellant to submit to a portable
breath test (“PBT”) test which confirmed the presence of alcohol. Based upon
the foregoing, Trooper Spangler arrested Appellant for driving under the
influence (“DUI”) and transported him to Evangelical Community Hospital for
a blood draw. The blood draw, which occurred at 12:30 a.m., revealed that
Appellant’s blood alcohol content was 0.294%.
On January 18, 2022, the Commonwealth filed a criminal complaint
against Appellant and charged him with various DUI related crimes. On May
23, 2022, Appellant filed an omnibus pre-trial motion, seeking to suppress the
evidence against him. In particular, Appellant claimed that the troopers
entered the Hollow Road residence without a warrant and arrested him without
probable cause in violation of his constitutional rights. A suppression hearing
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was held on January 6, 2023 during which Trooper Spangler, Bryce Noon and
Sherri Showers testified. The trial court denied Appellant’s motion that day.
Thereafter, on March 27, 2023, Appellant was tried on a case stated basis
without a jury and, ultimately, convicted of DUI – general impairment, DUI –
highest rate, and 10 summary offenses, none of which are germane to the
issues raised by Appellant on appeal.1 On October 12, 2023, Appellant was
sentenced to five years’ probation with restrictive conditions. In addition, the
trial court ordered Appellant to pay a total fine of $3,650.00, $100.00 to the
Substance Abuse Education and Demand Reduction fund, any court costs and
costs of prosecution. This timely appeal followed.
Appellant raises the following issues on appeal:
1. Whether the trial court erred in denying Appellant’s motion
to suppress evidence when the police unlawfully entered
Appellant’s residence without a warrant?
2. Assuming the police lawfully entered Appellant’s residence,
was [] Appellant’s arrest based upon probable cause?
Appellant’s Brief at 11.
On appeal, Appellant challenges the trial court’s disposition of his motion
to suppress. Our standard of review for an order denying a motion to suppress
is well established.
[We are] 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
____________________________________________
1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 1543(a), 1543(b)(1)(ii), 3714(a),
3736(a), 3309(1), 3746(a)(2), 3744(b), 3745(a), 4581(a)(2)(ii), and
3809(a), respectively.
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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, as here,
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. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019), quoting
Commonwealth v. Kemp, 195 A.3d 269, 275 (Pa. Super. 2018).
We initially consider whether the troopers violated Appellant’s
constitutional rights when they entered the Hollow Road residence without a
warrant and absent exigent circumstances or consent. The following principles
govern our assessment.
The Fourth Amendment of the United States Constitution
protects against unreasonable searches and seizures.
Fernandez v. California, 571 U.S. 292, 298 (2014);
Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007).
Warrantless entry by law enforcement into a home to look for a
suspect is presumptively unreasonable and is constitutionally
impermissible absent an applicable exception to the Fourth
Amendment's general requirement that a warrant be obtained.
Payton v. New York, 445 U.S. 573, 586-603 (1980); Strader,
931 A.2d at 634; Commonwealth v. Hawkins, 257 A.3d 1, 9
(Pa. Super. 2020); Commonwealth v. Berkheimer, 57 A.3d
171, 179 (Pa. Super. 2012) (en banc). “Freedom from intrusion
into the home or dwelling is the archetype of the privacy
protection secured by the Fourth Amendment.” Payton, 445
U.S. at 587, quoting Dorman v. United States, 435 F.2d 385(D.C. Cir. 1970).
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Commonwealth v. Lehnerd, 273 A.3d 586, 589-590 (Pa. Super. 2022)
(footnote omitted).
While warrantless searches unsupported by probable cause are
generally deemed to be unreasonable, Pennsylvania courts recognize an
exception when a third-party consents to the search:
Both the federal and Pennsylvania constitutions permit
third-party consent to a search. When police officers obtain the
voluntary consent of a third party who has the authority to give
consent, they are not required to obtain a search warrant based
upon probable cause. The [Pennsylvania] Supreme Court
explained that a third party possessing common authority over
a premises can give valid consent to search against a
non-consenting person who shares authority because it is
reasonable to recognize that any of the co-inhabitants has the
right to permit the inspection in his own right and that the
others have assumed the risk that one of their number might
permit the common area to be searched.
Commonwealth v. Simmen, 58 A.3d 811, 816-817 (Pa. Super. 2012)
(citations and internal quotations omitted). As the foregoing principles make
clear, the constitution permits warrantless entry and search of a home where
an occupant with actual common authority over the premises consents to
police entry and an ensuing search. Illinois v. Rodriguez, 497 U.S. 177,
181 (1990); Commonwealth v. Hawkins, 257 A.3d 1, 9-10 n.6 (Pa. Super.
2020); Commonwealth v. Basking, 970 A.2d 1181, 1188 (Pa. Super.
2009).
As stated above, valid consent must be given voluntarily. Consent is
considered “voluntary” if it is “the product of an essentially free and
unconstrained choice – not the result of duress or coercion, express or
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implied, or a will overborn – under the totality of the circumstances.”
Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003) (en
banc). “While knowledge of the right to refuse to consent to the search is a
factor to be taken into account, the Commonwealth is not required to
demonstrate such knowledge as a prerequisite to establishing a voluntary
consent.” Commonwealth v. Powell, 994 A.2d 1096, 1102 (Pa. Super.
2010) (quotation omitted). Importantly, verbal and non-verbal cues may
constitute valid consent to enter a premise. Commonwealth v. Daniels,
421 A.2d 721 (Pa. Super. 1980) (concluding that Daniels non-verbal cues
constituted valid consent to enter the premises).
Herein, Appellant challenges the trial court’s finding that Showers
consented to the troopers’ entry into the Hollow Road residence. Importantly,
Appellant does not claim that Showers lacked authority to provide valid
consent, as it is undisputed that Showers lived at the Hollow Road residence.
See N.T. Suppression Hearing, 1/6/23, at 37 (the trial court finding that
Showers “does live at the residence that is the subject residence here”).
Rather, Appellant argues the trial court’s finding of consent is erroneous
because the Trooper Spangler did not ask to enter the residence, Showers did
not provide verbal consent to enter the residence, and Trooper Spangler did
not advise Showers of her ability to refuse entry. Appellant’s claim lacks merit.
At the suppression hearing, Trooper Spangler discussed the encounter
with Showers, as well as the troopers’ entry into the Hollow Road residence,
as follows:
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[District Attorney]: Who was the registered owner of the
vehicle?
[Trooper Spanger]: Sherri Showers.
[District Attorney]: And do you remember what her address
was?
[Trooper Spanger]: [Along] Hollow Road
[District Attorney]: Did you go to that address?
[Trooper Spanger]: Yes, I did.
[District Attorney]: With Trooper Phillips?
[Trooper Spanger]: Yes.
[District Attorney]: What happened when you got there?
[Trooper Spanger]: I do [not] recall exactly who was driving.
As we pulled in the driveway, I observed a female, later
identified as Showers, pacing back and [forth]. I could see her
in the kitchen window. Upon exiting my patrol vehicle, I was
met half-way on the porch. [] Showers [] c[a]me out. And I []
asked her who was operating the vehicle; and she said, [h]e
[is] inside sitting on the chair.
At that point[,] she [went] back over to the door, opened the
door, and I walked in and made contact with [Appellant].
[District Attorney]: Where was Showers standing when you
walked into the residence?
[Trooper Spanger]: She was standing on the left of the front
door.
[District Attorney]: Did she do anything to indicate that she did
[not] want you to come into the residence?
[Trooper Spanger]: No, she [did not].
[District Attorney]: Did she open the door or did you open the
door?
[Trooper Spanger]: She opened the door.
[District Attorney]: When you first made contact with her, was
Showers outside or inside the residence?
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[Trooper Spanger]: She [] met me outside. She [] actually
came outside of the residence and met me half-way from the
porch, half-way up the porch.
[District Attorney]: Did she identify the driver by his name or
just point to him?
[Trooper Spanger]: She just pointed. She did not identify him
by his name. She said he was inside sitting on the chair.
[District Attorney]: Did you then go in the residence?
[Trooper Spanger]: Yes, I did.
N.T. Suppression Hearing, 1/6/23, at 9-10.
The foregoing demonstrates that Showers, an individual with undisputed
actual authority, voluntarily consented to the troopers’ entry into the Hollow
Road residence. In particular, we note that Trooper Spanger’s testimony
established that Showers provided such consent by opening the door, standing
aside the doorway, and pointing to Appellant. In contrast to Appellant’s
claims, non-verbal consent is constitutionally permissible. See Daniels,
supra. We also note that there is no evidence that Showers was under
coercion or duress when she held the door open to the troopers. See
Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999) (indicating
that the “evaluation” of “consent necessarily entails consideration of a variety
of factors” including “the use of duress or coercive tactics by law enforcement
personnel”). Further, Showers did nothing to physically prevent Trooper
Spangler’s entry, nor did she express objection to the troopers’ presence
inside the residence. To the contrary, Trooper Spangler testified that Showers
sat in the kitchen, smoked cigarettes, and complained to Trooper Phillips about
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the accident. See N.T. Suppression Hearing, 1/6/23, at 11. Finally, it bears
mentioning that, during the suppression hearing, Showers testified that she
did not, in fact, consent to the troopers’ entrance into the Hollow Road
residence. See id. at 27 (Showers testifying that she did not give the troopers
“permission to enter [her] residence.”). The trial court, however, as the “sole
authority to assess the credibility of witnesses” was “entitled to believe all,
part or none of the evidence presented.” Commonwealth v. Reese, 31 A.3d
708, 721 (Pa. Super. 2011). We will not disturb the trial court’s credibility
determinations on appeal. We therefore affirm the trial court’s order denying
suppression.
We now turn to Appellant’s claim that his arrest was not supported by
probable cause. More specifically, Appellant argues that the officers lacked
probable cause to believe that he was the operator of the vehicle in question
or that he was DUI. We disagree.
This Court previously explained:
An officer has probable cause to make a warrantless arrest
“when the facts and circumstances within the police officer's
knowledge and of which the officer has reasonably trustworthy
information are sufficient in themselves to warrant a person of
reasonable caution in the belief that an offense has been
committed by the person to be arrested.” Commonwealth v.
Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005) (citation
omitted). “Probable cause justifying a warrantless arrest is
determined by the totality of the circumstances. …
Furthermore, probable cause does not involve certainties, but
rather the factual and practical considerations of everyday life
on which reasonable and prudent persons act.”
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super.
2008) (citations and quotation marks omitted).
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Simmen, 58 A.3d at 817.
Herein, Appellant was involved in a single-vehicle accident, which
caused his Ford F-150 to overturn onto its passenger side. After discovering
Showers owned the Ford F-150, the troopers proceed to the Hollow Road
residence and encountered Showers who identified the driver of the pick-up
truck by advising two troopers that: “He [is] inside sitting on the chair.” N.T.
Suppression Hearing, 1/6/23, at 10. Showers also “gestured to the
individual,” i.e., Appellant, “sitting inside” the residence. Trial Court Opinion,
4/10/23, at 2. Trooper Spangler then made contact with Appellant who
displayed visible signs of intoxication, including “difficulty sitting in the chair;
thick, slurred speech; [and] a very strong odor of alcohol emanating from his
person.” N.T. Suppression Hearing, 1/6/23, at 10. Accordingly, Trooper
Spangler asked Appellant to submit to a PBT test, which revealed the presence
of alcohol. Id. at 11. Based upon the foregoing, Trooper Spangler arrested
Appellant. In view of the totality of the circumstances, we conclude that the
trial court did not err in denying Appellant’s suppression motion as Appellant’s
arrest was supported by probable cause.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/22/2024
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