Com. v. Kotanoe, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHAM KOTANOE :
:
Appellant : No. 1621 EDA 2017
Appeal from the Judgment of Sentence April 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010315-2015,
MC-51-CR-0027531-2015
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 05, 2019
Kham Kotanoe appeals from the judgment of sentence of two and one-
half to five years of imprisonment imposed for his conviction for possession of
a controlled substance with intent to deliver (“PWID”). Specifically, Appellant
challenges the denial of his pretrial suppression motion. Upon review, we
vacate Appellant’s judgment of sentence and remand with instructions.
The underlying facts are as follows. In August of 2015, Philadelphia
police officer James Coolen undertook surveillance of 2701 Snyder Avenue
based upon information obtained from a confidential informant (“CI”). From
a driveway across from the rear driveway of that address, Officer Coolen
observed the CI make four controlled buys of cocaine and heroin on different
dates. Most of the sales were completed out of a white BMW driven by Russell
Barnes in the rear driveway of the residence. On one occasion, following a
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call from the CI, Barnes exited a door of the Snyder Avenue residence marked
as apartment A to conduct the transaction in the rear driveway. With this
information, Officer Coolen obtained a warrant to search the BMW and
apartment A of the residence. After stopping Russell in the BMW on the street
near the residence and searching the vehicle, the police executed the warrant
on the residence, where they found guns, drugs, and Appellant sitting on a
mattress on the floor.
Appellant was arrested and charged with drug and firearms violations.
He filed a pretrial motion seeking suppression of evidence and statements
based upon, inter alia, violation of the Fourth Amendment and Article I,
Section 8 of the Pennsylvania Constitution. At the start of a joint hearing on
the suppression motions filed by Appellant and Barnes, Appellant specified
that one of the grounds for his motion was Officer Coolen’s failure to knock
and announce before executing the warrant. While testifying at the hearing,
Officer Coolen offered no evidence concerning the circumstances of his entry
into the residence. Appellant argued that his motion should be granted given
the lack of evidence, prompting the Commonwealth to ask to recall Officer
Coolen. The trial court did not expressly deny the request, but Officer Coolen
was not recalled to offer further testimony. The court took the matter under
advisement, and ultimately denied the motion.
At a non-jury trial, Appellant was found not guilty of the firearms
charges, but guilty of PWID and simple possession. Appellant was sentenced
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as indicated above on April 20, 2017.1 Appellant filed a timely notice of
appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following question for our review: “Did not the lower
court err in denying Appellant’s motion to suppress physical evidence where
there was no evidence the police made any attempt to comply with the knock
and announce rule?” Appellant’s brief at 3.
We consider Appellant’s question mindful of the following.
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. Where 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 plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned
up).
Pennsylvania’s knock and announce procedures are codified at
Pa.R.Crim.P. 207. That rule provides the following:
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1The trial court merged the possession conviction with PWID for sentencing
purposes.
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(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. This Court has offered the following discussion about the
knock and announce rule.
The purpose of the knock and announce rule is to prevent
violence and physical injury to the police and occupants, to protect
an occupant’s privacy expectation against the unauthorized entry
of unknown persons, and to prevent property damage resulting
from forced entry. The purpose of the rule may be achieved only
through police officers’ full compliance. Indeed, our Supreme
Court has held that in the absence of exigent circumstances,
forcible entry without announcement of identity, authority and
purpose violates Article I, Section 8 of the Pennsylvania
Constitution, which proscribes unreasonable searches and
seizures. Our Supreme Court has determined that the remedy for
noncompliance with the knock and announce rule is always
suppression.
Commonwealth v. Frederick, 124 A.3d 748, 755 (Pa.Super. 2015) (cleaned
up).
At a hearing on a suppression motion, “it is the Commonwealth’s burden
to prove, by a preponderance of the evidence, that the challenged evidence
was not obtained in violation of the defendant’s rights.” Commonwealth v.
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Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012). In the context of a claim that
the police did not comply with knock and announce procedures, the
Commonwealth meets its burden “by establishing either that the police
complied with the knock and announce rule or that the circumstances satisfied
an exception.” Frederick, supra at 755 (internal quotation marks and
emphasis omitted).
In the instant case, the record contains only the following evidence
regarding Officer Coolen’s entry into the residence to execute the search
warrant.
Q. Okay. So you conducted the search of 2701 Snyder Avenue
after you stopped the defendant?
A. That’s correct.
Q. About how long after?
A. Maybe 10 minutes.
Q. Okay. So, safe to say, then, you served this search warrant
at 2701 Snyder Avenue approximately 2:45?
A. Yes.
Q. Okay. And what happens when you serve the search
warrant at 2701 Snyder Avenue?
A. Once inside that location, Your Honor, there was an
apartment to the left after you went in that front door.
[Appellant] was sitting on the bed in that location. . . .
N.T. Pretrial Motions, 6/14/16, at 27-28.
Following the close of evidence on the motions, Appellant argued that
the Commonwealth failed to offer evidence that the police either knocked and
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announced, or were faced with exigent circumstances. Id. at 75. He argued
that the evidence in the record suggested that the police did not knock and
announce. Officer Coolen’s testimony compared the size of the entire
apartment to the size of the courtroom’s jury box; thus, the ability to hear
was not an issue. He added, “I don’t think people cuddle with an AR-15 when
they hear that there are police at the door waiting to come in.” Id. at 76.
The Commonwealth responded to the argument as follows.
Judge, just to address the knock and announce portion, and that,
I suppose, is my fault just for not asking him. The officer testified
that after they served the search warrant, and we went from
there. Ms. Snyder [(counsel for Appellant)] didn’t ask him a single
question about what he did when he got there. So, the testimony
is that he served the search warrant in accordance with the way
that you serve a search warrant, and that’s the testimony that
came out. She didn’t cross examine him. She asked him actually
zero questions. So I would ask you to basically just disregard that
argument.
Id. at 76-77.
Appellant provided authority to the suppression court for the proposition
that the Commonwealth at a suppression hearing initially has both the burden
of production and persuasion to demonstrate that the evidence was legally
obtained. Id. at 81 (citing Commonwalth v. Enimpah, 62 A.3d 1028, 1031
(Pa.Super. 2013)). The Commonwealth responded, “Well, then, Judge, I
would ask to just recall Officer Coolen.” Id. Counsel for Barnes objected. Id.The court inquired whether the issue was addressed during Officer Coolen’s
direct examination, and both Appellant and the Commonwealth agreed that
there was no evidence either way from the officer. Id. at 82. The
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Commonwealth, however, maintained that no negative inference could be
made from the absence of evidence that the police did knock and announce.
Id. at 82-83. Counsel for Appellant reiterated that the burden of proof was
on the Commonwealth and that Appellant had no burden to produce evidence;
hence there was no obligation for her to delve into the subject on cross-
examination. Id. at 83. The trial court responded, “I’m not faulting you one
way or the other. All I’m saying is that I sort of understand both of your points
of view.” Id. The court then stated “I think we’re done, and what I’m going
to do is take the request under advisement.” Id.
In its Rule 1925 opinion, the trial court indicates that, with “no evidence
that Officer Coolen did not abide by all knock and announce procedures,” and
the fact that “it is standard procedure that to serve a search warrant, an officer
must comply with the knock and announce rule[,]” it properly denied
Appellant’s motion because “the officer’s testimony that he served the search
warrant in accordance with the way that you serve a search warrant suggests
that he also abided by the knock and announce rule.” Trial Court Opinion,
11/3/17, at 6 (unnecessary capitalization omitted).
The record does not support the trial court’s findings. Contrary to the
trial court’s representation, Officer Coolen did not testify that he served the
warrant “in accordance with the way that you serve a search warrant.” As
detailed above, Officer Coolen merely responded “yes” when asked if he
served the warrant, then, when asked what happened when he served it, he
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went straight to describing being inside the residence. As both Appellant and
the Commonwealth acknowledged at the hearing, there was simply no
evidence either way about whether the officers complied with the knock and
announce rule. N.T. Pretrial Motions, 6/14/16, at 82.
Nor are we persuaded by the trial court’s assertion that the lack of
evidence that the officer knocked and announced does not require a finding
that Rule 207 was not followed. The court cites Commonwealth v. Kane,
940 A.2d 483, 492 (Pa.Super. 2007), for the proposition that “where the
purpose of the rule has not been offended and where police conduct is
reasonable, suppression will not be granted based upon an overly-technical
approach to the knock and announce rule.” Trial Court Opinion, 11/3/17, at
8. The Kane decision is inapt here. First, the Commonwealth in the instant
case offered no evidence to demonstrate what conduct the police undertook,
let alone evidence that they acted reasonably. Second, the police in Kane
knocked and announced three times at one door of the structure at issue, but,
once in, failed to knock on a doorway that connected one portion of the
building to another before proceeding to the latter portion. Kane, supra at
487-88. Here, there is no indication that the police knocked or announced at
any point.
Similarly, the court’s reliance upon Commonwealth v. McDonnell,
516 A.2d 329, 332 (Pa. 1986), is misplaced. In that case, our Supreme Court
found no knock and announce violation where the officers entered a porch
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door and walked across the six-foot porch area before knocking on the door
to the attached house and announcing their intent to execute a warrant. The
Court noted the officers’ testimony of their belief that the rule’s purpose would
not have been served by knocking on the door to the visibly-unoccupied porch,
and that the warrant was ultimately served peaceably, prior to
commencement of any search, when the occupant of the house answered the
knock to the house door and allowed the officers into the house. Again, in the
instant case there is no evidence that Officer Coolen made an attempt to knock
or announce at any entrance to the apartment.
As such, it is clear that the Commonwealth did not meet its burden of
production in establishing that the search was not unconstitutional. However,
that does not end our inquiry, as the trial court and the Commonwealth both
raise waiver arguments as alternative bases to affirm the trial court’s ruling.
The Commonwealth asserts that Appellant waived his knock and announce
claim by not raising it with sufficient specificity in his suppression motion.
Commonwealth’s brief at 6. The trial court suggests that “the defense waived
its right to now argue that the requirements of Rule 207 were not met when
it objected to Officer Coolen being recalled.” Trial Court Opinion, 11/3/17, at
6. We are not persuaded by either contention.
Appellant’s written motion stated as basis for suppression, inter alia, the
violation of his right to be free from unreasonable searches under the Fourth
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Amendment and Article I, Section 8 of the Pennsylvania Constitution. 2 The
Commonwealth did not object to any lack of specificity in the motion, and
brought the relevant witness to the hearing. When asked by the court at the
outset of the hearing to state the bases for suppression, Appellant clearly
identified Officer Coolen’s failure to knock and announce. N.T. Pretrial
Motions, 6/14/16, at 8. Again, there was no objection from the
Commonwealth. Under these circumstances, Appellant’s failure to specifically
reference Rule 207 or knock and announce in his written motion does not
warrant waiver. Compare Commonwealth v. Downey, 39 A.3d 401, 404
(Pa.Super. 2012) (declining to find suppression issue waived, although it was
not raised in a timely written motion, where Commonwealth did not object to
the oral motion and the trial court addressed it in the merits), with
Commonwealth v. Freeman, 128 A.3d 1231, 1242 (Pa.Super. 2015)
(finding issue waived where it was neither stated with specificity in written
motion nor offered at the suppression hearing when court asked for basis of
requesting suppression).
Nor are we convinced that Appellant forfeited his right to hold the
Commonwealth to its duty to come forth with evidence because there was an
objection to the Commonwealth’s request to recall Officer Coolen. According
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2 The record before us does not contain co-defendant Barnes’s suppression
motion; thus, we are unaware of whether Barnes specified a Rule 207
violation.
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to the hearing transcript, it was counsel for co-defendant Barnes who raised
the objection. N.T. Pretrial Motions, 6/14/16, at 81. There is no indication
that counsel for Appellant joined the objection; rather she informed the court
of her position that Officer Coolen had failed to address whether he had
knocked and announced, and maintained that it was not her duty to elicit
testimony on the subject from him. Id. at 81-83. Instead of making an
express ruling on the Commonwealth’s request, the court ambiguously stated
“I think we’re done, and what I’m going to do is take the request under
advisement.” Id. at 83. We decline to hold that such a record calls for the
harsh result of deeming Appellant’s claim waived.
However, we agree with the Commonwealth that, given Appellant’s
initial lack of specificity in the stated grounds for suppression and his apparent
failure to accede to the Commonwealth’s request to immediately correct its
evidentiary oversight, a supplemental suppression hearing rather than the
award of a new trial is warranted.3 See Commonwealth’s brief at 7-8 (citing,
inter alia, Commonwealth v. Ryan, 442 A.2d 739, 744-45 (Pa.Super. 1982)
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3 In his reply brief, Appellant argues that the Commonwealth waived the claim
that the trial court erred in not allowing it to recall Officer Coolen based both
upon the lack of the entry of a reviewable order denying the request and the
Commonwealth’s failure to object “to the lower court handling its request in
this manner[.]” Appellant’s reply brief at 5 (citing Pa.R.A.P. 302(a)).
However, “[t]he general rule that issues not raised in the lower court may not
be raised on appeal applies only to appellants, not to appellees. . . . An
appellee has no obligation to preserve any argument in the lower court.”
Yorty v. PJM Interconnection, L.L.C., 79 A.3d 655, 666 n.7 (Pa.Super.
2013). Therefore, waiver does not apply.
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(holding trial court erred in refusing to reopen suppression hearing, despite
Commonwealth’s initial refusal to offer evidence, where the request was made
before the record demonstrated that the proceedings were closed)).
Given the trial court’s errors and both parties’ failure to abide by the
letter of the law, we vacate Appellant’s judgment of sentence and remand for
the trial court to conduct a supplemental suppression hearing solely on
Appellant’s claim that the evidence obtained as a result of the search of 2701
Snyder Avenue must be suppressed because the police failed to comply with
Rule 207 in executing the warrant. “If the suppression court determines the
challenged evidence is to be suppressed, then a new trial is granted. If,
however, the court determines the evidence is not to be suppressed, the
judgment of sentence [shall be reimposed] and [A]ppellant may file a timely
appeal from that determination, if he so desires.” Commonwealth v. Hall,
302 A.2d 342, 346 (Pa. 1973).
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/19
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