Com. v. Rudolph, S.

J-S11014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SPENCER GENE RUDOLPH :
:
Appellant : No. 699 WDA 2021
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000164-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SPENCER GENE RUDOLPH :
:
Appellant : No. 700 WDA 2021
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000165-2019
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: SEPTEMBER 13, 2022
In this consolidated case, Spencer Gene Rudolph appeals from his
judgment of sentence for, inter alia, possession with intent to distribute
(“PWID”) at criminal docket CP-16-165-CR-2019 and his judgment of
sentence for, inter alia, drug delivery resulting in the death of William Stout
at criminal docket CP-16-164-CR-2019. Rudolph’s single issue on appeal is
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whether the trial court erred by denying his motion to suppress controlled
substances and other contraband found during a search of his house. We
agree with Rudolph that the trial court erred, as the record is clear the
Commonwealth did not meet its burden at the suppression hearing of
establishing the search warrant was lawfully executed. The Commonwealth
concedes it made an error at Rudolph’s suppression hearing and advocates
that we remand for a second suppression hearing to redress that error. We
decline to do so, as that would require us to ignore the clear burden the
Commonwealth carried - but failed to meet - at Rudolph’s suppression
hearing. Instead, we vacate Rudolph’s judgments of sentence, reverse the
suppression order and remand for proceedings consistent with this
Memorandum.
When this Court reviews a trial court’s denial of a suppression motion,
as we are tasked to do in this case, we are limited to reviewing only the
evidence presented at the suppression hearing. See Commonwealth v.
Carey, 249 A.3d 1217, 1223 (Pa. Super. 2021). Because the Commonwealth
prevailed before the suppression court, we are further limited to considering
only the evidence presented by the Commonwealth and that evidence
presented by Rudolph that remains uncontradicted when read in the context
of the record as a whole. See id.Here, the trial court held a joint suppression hearing for both docket
numbers on October 7, 2019. There was little, if any, testimony relevant to
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the instant appeal at the suppression hearing. However, the Commonwealth
did incorporate the notes of testimony from Rudolph’s joint preliminary
hearing held on April 9, 2019 into the record of the suppression hearing.
At the preliminary hearing, the Chief of Police of Clarion Borough, Chief
William Peck, was the only person to testify. Peck confirmed he began
investigating the death of Stout from a fentanyl overdose on November 20,
2018. See N.T., 4/9/19, at 22-23. Peck recounted that he looked through
Stout’s phone and saw a contact for “Spencer.” See id. at 25-26. He testified
he had separately received information that Rudolph was dealing drugs out of
his house, see id. at 25, and that a “light bulb went off” connecting that
information to the “Spencer” name in Stout’s phone. Id. at 26. He entered
the phone number associated with “Spencer” in Stout’s contact list into
Facebook Messenger, and Rudolph’s Facebook profile emerged. See id. At
that point, Peck began focusing his investigation into Stout’s death on
Rudolph. See id.
Peck testified he conducted surveillance of Rudolph’s house and
“observed numerous vehicles com[e] to the house, go inside, come back out
within minutes and leave.” Id. at 11. Peck recounted that he applied for a
search warrant for Rudolph’s house on February 11, 2019, and the warrant
was issued that same day. See id. at 6-7, 13. The warrant was then executed
on February 13, 2019. See id. at 7. Regarding the warrant’s execution, Peck
testified he waited in his police vehicle while the Pennsylvania State Police
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“SWAT” team executed the warrant at approximately 6:05 a.m. on February
13, 2019. See id. at 14-15. When asked if the state police knocked or waited
for a response, Peck replied:
A. I was in a vehicle.
Q. So you don’t know?
A. The protocol is they knock and announce. I heard them verbally
yelling stuff, so that would be announcing to me, and they were
yelling prior to going in.
Q. Did you witness anybody knocking, or no?
A. I did not.
Id. at 15-16.
Peck testified the state police made a forced entry and found Rudolph
inside the house. See id. at 16-17. Peck entered the house afterwards. During
a search of the house, the police found multiple controlled substances and
drug paraphernalia, including one-half to three-quarters of a pound of
marijuana packaged in different amounts, suspected cocaine, as well as stamp
bags and other packaging material. See id. at 8. Peck interviewed Rudolph,
and according to Peck, Rudolph told Peck that he both used and sold drugs.
See id. at 9, 19-20. Rudolph also told Peck he had worked with Stout. Peck
testified that Rudolph originally denied selling heroin or fentanyl to Stout, but
then admitted to selling him five stamp bags of heroin on November 19, 2018.
See id. at 28. Peck recounted that Stout was found dead inside his home on
November 20, 2018. See id. at 33.
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Peck proceeded to testify about his subsequent investigation into Stout’s
death and drug activity involving Rudolph. That investigation “revealed a
network of drug distribution that spanned multiple counties,” Appellant’s Brief
at 8, and included Rudolph as a “runner” for that network.1
These two events that Peck testified to at the preliminary hearing - the
search of Rudolph’s house and the subsequent investigation into the larger
drug network and its connection to Stout’s death - led to two separate filings
of charges against Rudolph. First, following the search of Rudolph’s house,
Rudolph was charged on February 15, 2019 with multiple drug offenses at
criminal docket 165-CR-2019. Specifically, he was charged with four counts
of PWID, two counts of conspiracy, three counts of possession of a controlled
substance and one count of possession of paraphernalia. Then, on March 15,
2019, Rudolph was charged at criminal docket 164-CR-2019 with drug
delivery resulting in death, corrupt organizations, conspiracy to commit
corrupt organizations, criminal use of a communications facility and
involuntary manslaughter. All of the charges in both cases were held for court
following the preliminary hearing.
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1Although the details of this investigation are not necessary to the resolution
of this appeal, Peck did testify about those details at the preliminary hearing
as they were clearly relevant to his charges at criminal docket 164-CR-2019.
See id. at 30-70. The trial court also summarized the investigation in its
opinion supporting its motion to deny the suppression motion. See Trial Court
Opinion and Order, 11/7/19, at 4-5.
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Rudolph filed several pre-trial motions: 1) a petition for writ of habeas
corpus; 2) a motion to suppress his statement - corpus delicti; and 3) a motion
to suppress evidence based on an unlawful search and seizure. The only
motion at issue in this appeal is the third, the motion to suppress based on an
unlawful search and seizure. In that motion, Rudolph challenged the search
warrant for his house on several fronts. He argued that the search warrant
was not supported by probable cause, that the warrant was defective as it did
not mark the date and time of its issuance, and that the search warrant had
been unlawfully executed. As to this last assertion, the suppression motion
specifically averred the police “failed to provide [Rudolph] with sufficient time
to open the door and allow them to enter,” and that the police entry was
therefore unreasonable under the “knock and announce” rule. Motion to
Suppress - Unlawful Search and Seizure, 8/14/19, at 4 (unpaginated).
The trial court, as noted above, held a joint suppression hearing on all
three motions on October 7, 2019. At the beginning of the hearing, the
Commonwealth stated:
[T]here are three separate motions that were filed. [One] motion
was the motion to suppress unlawful search and seizure. That was
based on a warrant that was issued for the search in [ ] Rudolph’s
residence in which [Rudolph argued that the warrant] was not
supported by probable cause, and therefore, the fruits of that
search shall be suppressed. That would be the four corners of the
search warrant issue, so I’ll just move to admit Commonwealth’s
Exhibit A which is that search warrant. It is two pages: the front
cover and the affidavit of probable cause.
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N.T., 10/7/19, at 3-4. When defense counsel was asked if there was any
objection, he replied there was not. See id. at 4.
The court admitted the search warrant into evidence. The affidavit of
probable cause provided more information supporting the search warrant in
addition to that testified to by Peck at the preliminary hearing. For instance,
Peck stated in the affidavit that a confidential informant had initially provided
Peck with the information that Rudolph was dealing drugs out of his house,
and that there were text messages between the confidential informant and
Rudolph. Peck also elaborated on the surveillance he had conducted on
Rudolph’s house. He recalled that on February 8, 2019, he had seen three
vehicles pull up to Rudolph’s house in a manner that he described as
consistent with drug-related activity. Lastly, Peck averred in the affidavit that
on February 9, 2019, the police contacted a confidential informant to arrange
a controlled drug buy with Rudolph, and the confidential informant then
purchased ten stamp bags of purported heroin/fentanyl inside of Rudolph’s
house that same day.
After the search warrant was admitted into evidence, Peck was called to
testify at the suppression hearing. As with the preliminary hearing, Peck was
the only witness the Commonwealth called to testify at the suppression
hearing. Peck’s suppression hearing testimony, however, was not relevant to
the motion to suppress based on an unreasonable search and seizure. Instead,
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Peck’s testimony primarily focused on a discussion of stamp bags and their
use in drug-related activity.
Following the suppression hearing, the court asked the parties for briefs.
In its brief-in-opposition, the Commonwealth recognized Rudolph had
specifically argued in his suppression motion and his brief-in-support that the
execution of the search warrant had violated the “knock and announce” rule.
The Commonwealth also acknowledged it had relied on the four corners of the
search warrant at the suppression hearing to establish the constitutionality of
the search warrant. It recognized in its brief, however, that this reliance on
the search warrant itself was not sufficient to establish that the warrant had
been lawfully executed and that it had “mistakenly overlooked” Rudolph’s
issue regarding the warrant’s execution.
Despite its mistake, the Commonwealth noted there had been testimony
at the preliminary hearing that briefly touched on the execution of the warrant.
The Commonwealth argued that such testimony, which had been incorporated
into the suppression hearing record, was sufficient to refute Rudolph’s claim
that the police had violated the “knock and announce” rule. In the alternative,
the Commonwealth asserted that because the issue was “mistakenly not
addressed at the time of the [suppression] hearing,” the court should
essentially remand for a second suppression hearing in the event that it
“need[ed] further testimony before making a decision” on Rudolph’s challenge
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to the constitutionality of the warrant’s execution. Commonwealth’s Brief in
Opposition to Defendant’s Omnibus Pretrial Motions, 10/28/19, at 9-10.2
The trial court did not remand for further testimony. Instead, it denied
all three of Rudolph’s pre-trial motions. In denying the motion to suppress
based on an unreasonable search and seizure, the court found the search
warrant had been supported by probable cause and that it had been properly
executed. As for the latter, the court concluded Peck’s testimony that the
protocol for the state police was to “knock and announce” and that the police
had yelled before entering Rudolph’s house was sufficient to establish there
had been no violation of the “knock and announce” rule.
The matters proceeded to two separate jury trials. At docket 165-CR-
2019, the jury found Rudolph guilty of two counts of PWID, three counts of
possession of a controlled substance and one count of possession of drug
paraphernalia. At docket 164-CR-2019, the jury convicted Rudolph of all
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2 The Commonwealth asserted in its brief-in-opposition that the defense had
stipulated that the four corners of the search warrant would be sufficient to
address the merits of his suppression motion based on an unreasonable search
and seizure. However, the record of the suppression hearing only reveals
defense counsel declining to object to the Commonwealth’s request to admit
the search warrant for purposes of establishing the probable cause component
of Rudolph’s suppression motion. The Commonwealth also asserted in its
brief-in-opposition that the parties had agreed that the trial court should
reopen the record and essentially hold a second suppression hearing if the
court deemed it necessary in order to address Rudolph’s “knock and
announce” claim, but the Commonwealth does not point to any place in the
record showing such an agreement. In any event, the Commonwealth does
not make either of these assertions on appeal.
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counts with the exception of involuntary manslaughter, which had been nolle
prossed. The court held a joint sentencing hearing for both dockets on August
26, 2020. The court sentenced Rudolph at both cases to an aggregate term of
imprisonment of 169 months to 392 months. Rudolph appealed from both
judgments of sentence, and this Court sua sponte consolidated the two.
Rudolph raises the following singular issue in both appeals:
Whether the lower court erred in denying [Rudolph’s] suppression
motion related to a search warrant for one or more of [three]
reasons: 1) lack of probable cause for issuance; 2) defect in
application and approval; and 3) violation of Pa.R.Crim.P. 207
[codifying the “knock and announce” rule].
Appellant’s Brief at 4 (unnecessary capitalization omitted).
When this Court reviews a challenge to the denial of a suppression
motion, we look to see whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct. See Carey, 249 A.3d at 1223. We are bound by the
suppression court’s factual findings if those findings are supported by the
record. See id. We are not, however, bound by the suppression court’s legal
conclusions. See id. To the contrary, it is our duty to determine if the
suppression court properly applied the law to the facts. See id. On review, we
remain mindful that it is the Commonwealth which bears the burden at a
suppression hearing to prove by a preponderance of the evidence that the
evidence sought to be suppressed by the defendant was not obtained in
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violation of the defendant’s rights. See Commonwealth v. Kane, 210 A.3d
324, 329 (Pa. Super. 2019).
With these standards in mind, we address the third part of Rudolph’s
issue first as it is this particular claim that we find merits relief. There, Rudolph
argues the trial court erred by finding the Commonwealth met its burden of
refuting Rudolph’s assertion that the police violated Pa.R.Crim.P. 207,
commonly referred to as the “knock and announce” rule, when executing the
search warrant on his house. We agree.
Rule 207 codifies the “knock and announce” rule:
(A) A law enforcement officer executing a search warrant shall,
before entry, give, or make reasonable effort to give, notice of the
officer’s identity, authority, and purpose to any occupant of the
premises specified in the warrant, unless exigent circumstances
require the officer’s immediate forcible entry.
(B) Such officer shall await a response for a reasonable period of
time after this announcement of identity, authority, and purpose,
unless exigent circumstances require the officer’s immediate
forcible entry.
(C) If the officer is not admitted after such reasonable period, the
officer may forcibly enter the premises and may use as much
physical force to effect entry therein as is necessary to execute
the search.
Pa.R.Crim.P. 207.
As the text of Rule 207 makes clear, the rule does not actually impose
any specific obligation on the police to knock, despite frequently being referred
to as the “knock and announce” rule. See Commonwealth v. Frederick, 124
A.3d 748, 754 (Pa. Super. 2015). What Rule 207 does require, however, is
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that the police announce their identity, purpose and authority - and then wait
a reasonable amount of time for the occupants to respond prior to forcibly
entering the premises. See id.It is this second part, which is embodied in section (B) of Rule 207,
which Rudolph argues was not met here. He states:
A review of the testimony presented at the suppression hearing
shows no testimony related to the execution of the search
warrant. We are left, then, with the testimony from the
preliminary hearing, which was admitted as an exhibit at the
suppression hearing. [There], the affiant testified, ‘the protocol is
they knock and announce. I heard them verbally yelling stuff, so
that would be announcing to me, and they were yelling prior to
going in.’ The lower court mistakenly concluded this testimony
satisfied Pa.R.Crim.P. 207. While [Rudolph] concedes this may
satisfy section (A) of the Rule, it completely ignores section (B).
The preliminary hearing testimony did not speak at all to the
amount of time that elapsed between the announcing and the
entry.
Appellant’s Brief at 21.
We agree. As an initial matter, we question whether Peck’s fleeting
testimony that the state police’s general protocol is to “knock and announce”
and that the police officers executing the search warrant in this case engaged
in some sort of yelling before entering Rudolph’s house was sufficient to
support a finding that the officers made a constitutionally-valid announcement
of their identity, purpose and authority. Even if we were to conclude that it
was sufficient for that purpose, the Commonwealth still did not present any
testimony at the suppression hearing regarding the time the police waited
between this yelling and their entry, if any time at all. It is undisputed the
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Commonwealth did not call the state police officers who actually executed the
warrant to testify at the suppression hearing. This omission left only Peck’s
testimony from the preliminary hearing, which did not touch upon the amount
of time that had elapsed between any announcement the state police officers
may have made and their forced entry into Rudolph’s home just minutes after
six in the morning.
Without any testimony regarding this amount of time in the record, we
are obviously unable to ascertain whether that time was reasonable under the
circumstances of this case. This Court has made clear that when evaluating
whether the police waited a reasonable amount of time before forcibly entering
a property, we must look to the specific facts and circumstances the police
officers faced at the time their decision to enter was made. See Carey, 249
A.3d at 1227. The Commonwealth simply did not provide any of those facts
and circumstances regarding the entry into Rudolph’s home at the suppression
hearing, as was its clear burden to do. We therefore agree with Rudolph that
the Commonwealth failed to meet its burden of proving that, contrary to what
Rudolph explicitly alleged in his suppression motion, the police complied with
Rule 207 when executing the warrant to search his house.3
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3 We recognize the Commonwealth may meet its burden of disproving a claim
that the police violated the “knock and announce” rule either by showing
compliance with the rule or, in the alternative, by showing there were exigent
circumstances exempting the police from compliance. See Frederick, 124
A.3d at 755 (noting this standard and listing the four recognized exigent
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The Commonwealth once again acknowledges in its appellate brief that
the issue “of whether ‘knock and announce’ was violated was not addressed”
and that it “mistakenly overlooked [this issue] at the time of the suppression
hearing.” Commonwealth’s Brief at 4, 10. The Commonwealth argues the
“proper remedy for such an oversight would be to remand the case for another
suppression hearing.” Id. at 18. It points to Commonwealth v. Ryan, 419
A.2d 762 (Pa. Super. 1980), as support for its argument that a second
suppression hearing is the proper remedy for its failure to meet its burden of
establishing at the suppression hearing that the police did not violate the
“knock and announce” rule.
In Ryan, the police executed two separate search warrants on Ryan’s
place of business. Ryan sought to suppress the evidence obtained pursuant to
those search warrants, arguing, inter alia, that the confidential informant on
whose information the first search warrant was issued was not reliable. See
id. at 1346. At the suppression hearing, the Commonwealth produced the
search warrants and accompanying affidavits but did not produce any
witnesses or testimony. See id. The trial court denied Ryan’s suppression
motion. Ryan appealed, asserting the Commonwealth’s failure to produce
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circumstances justifying noncompliance with the “knock and announce” rule).
Although the Commonwealth does not argue there were exigent
circumstances present here, we note that the sparse record regarding the
execution of the search warrant would not support a finding that there were
any such exigent circumstances facing the state police when they entered
Rudolph’s house.
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anything other than the search warrants deprived him of his right to challenge
the veracity of the information in the warrants. See id. at 1347. In response,
the Commonwealth relied on Pa.R.Crim.P. 2003(b), subsequently re-
numbered to Pa.R.Crim.P. 203(D), to argue that it was only required to
produce the search warrant affidavit at the suppression hearing; it was Ryan’s
burden to produce any other evidence he deemed relevant. See id.
The Ryan panel held that pursuant to Pa.R.Crim.P. 323(h),
subsequently re-numbered to Pa.R.Crim.P. 581(h), the Commonwealth bore
the burden “of establishing the validity of the search warrant and the burden
is not carried by merely introducing the search warrant and affidavit with no
supporting testimony[.]” Id. at 1348. As the Commonwealth correctly points
out, this Court, after our Supreme Court issued an order remanding the matter
for clarification, remanded to the trial court for a new suppression hearing.
See Commonwealth v. Ryan, 414 A.2d 37 (Pa. 1980); 419 A.2d 762 (Pa.
Super. 1980). Essentially, the Ryan Court found that the Commonwealth had
committed a good faith mistake of law, but a mistake nonetheless, in
interpreting Rule 2003. It therefore remanded the case to the suppression
court to allow the Commonwealth, now aware of the proper reading of Rule
2003, an opportunity to meet its burden.
The circumstances in Ryan are clearly different from those here,
starting with the fact that Ryan is not a “knock and announce” case. The
Commonwealth here makes no argument that it mistakenly believed the four
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corners of the search warrant were, or could be, sufficient to prove the police
complied with the “knock and announce” rule. In fact, as noted above, it
acknowledges just the opposite, admitting it mistakenly overlooked Rudolph’s
claim of a “knock and announce” violation when it relied on the four corners
of the search warrant at the suppression hearing. This represents mere
carelessness, not a good faith mistake of law.
The Commonwealth also does not argue that it was unaware of its
burden as it relates to the “knock and announce” rule or that such a burden
was not clearly defined. To be sure, in cases involving the “knock and
announce” rule, such as the instant one, we have stated:
Our Supreme Court has determined that the remedy for
noncompliance with the knock and announce rule is always
suppression.
During a suppression hearing, the Commonwealth bears the
burden of proving the police seized evidence without violating
[the] defendant's constitutional rights. The Commonwealth can
satisfy its burden by establishing either that the police complied
with the knock and announce rule or that the circumstances
satisfied an exception.
Frederick, 124 A.3d at 755 (internal citations and quotation marks omitted)
(some emphasis removed).
Finally, we note that Ryan may no longer represent the law in
Pennsylvania. In 2013, our Supreme Court opined that, assuming
Pa.R.Crim.P. 581(J) allows the Commonwealth to supplement the record after
the suppression hearing has closed, it could only do so with evidence that was
previously unavailable. See In re L.J., 79 A.3d 1073, 1084 n.14 (Pa. 2013).
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We have already determined the Commonwealth failed to meet its
burden of showing the state police officers did not violate the “knock and
announce” rule, and in turn Rudolph’s constitutional rights, when the officers
forcibly entered Rudolph’s house. The Commonwealth was aware of its
burden, and it admirably recognizes it made a mistake in its efforts to meet
that burden at the suppression hearing. However, the remedy for that mistake
cannot, under the circumstances present here, be a remand for a second
suppression hearing. Such a remedy would unjustifiably afford the
Commonwealth a second opportunity to attempt to produce the substantive
evidence it simply made no attempt to produce at the time it was undisputedly
required to do so. The remedy must be suppression. See id.; see also
Commonwealth v. Iacavazzi, 443 A.2d 795, 798 (Pa. Super. 1981) (holding
that the Commonwealth was not entitled to a second suppression hearing to
cure its omission of proof that a search warrant was not properly issued or
executed, when the defendant made specific objections to the warrant’s
issuance and execution in his suppression motion and the Commonwealth
produced no evidence at the suppression hearing to dispute those objections).
As we find the trial court erroneously denied Rudolph’s suppression
motion based on the Commonwealth’s failure to produce evidence disproving
Rudolph’s claim that the police violated the “knock and announce” rule, we
need not address Rudolph’s remaining grounds for challenging the denial of
this suppression motion.
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Judgments of sentence vacated. Order denying suppression of evidence
obtained during the search of Rudolph’s home reversed. Remanded to the trial
court to conduct proceedings consistent with this Memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/13/2022
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