J-S16040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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)

____________________________________________


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.


____________________________________________


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

____________________________________________


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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