J-S17016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARISSA EHRMAN,

                            Appellant                 No. 610 WDA 2014


            Appeal from the Judgment of Sentence March 20, 2014
                In the Court of Common Pleas of Butler County
             Criminal Division at No(s): CP-10-CR-0001891-2012


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED APRIL 24, 2015

       Appellant, Marissa Ehrman, appeals from the judgment of sentence

entered following her conviction of possession of drug paraphernalia.       We

affirm.

       The trial court, in its opinion issued denying Appellant’s motion to

suppress, set forth the relevant facts of this case as follows:

       At hearing, Officer Anthony Fatta of the Butler City Police
       testified that he has been a police officer for twelve (12) years.
       He testified that on September 1, 2012, he responded to the
       Greenview Garden Apartments, apartment # 2B, to a female
       who had overdosed. When he arrived, the emergency medical
       personnel were providing treatment to [Appellant]. . . . Officer
       Fatta noted the presence of children’s toys and clothing in the
       apartment.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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            After [Appellant] was revived, Officer Fatta, concerned that
      others might come into contact with the drugs and
      paraphernalia, asked [Appellant] to tell him where the needles
      and drugs were located. At first [Appellant] wouldn’t say, but
      after the officer asked her a second time, [Appellant] complied
      and told the officer that they were located in the top dresser
      drawer in her bedroom. Officer Fatta testified that [Appellant]
      was coherent and understood his question and that he did not
      threaten or restrain her.

Suppression Court Opinion, 9/6/13, at 1.

      Officer Fatta recovered eight syringes, four burnt spoons with residue

on them, and five empty stamp bags from Appellant’s dresser drawer.

Appellant was charged with possession of drug paraphernalia.      Thereafter,

Appellant filed a pretrial motion seeking to suppress the evidence seized by

the police.     Following a suppression hearing, the trial court denied

Appellant’s pretrial motion.

      On January 27, 2014, a jury convicted Appellant of the crime stated

above. On March 20, 2014, the trial court sentenced Appellant to serve a

term of probation of six months. This timely appeal followed.

      Appellant presents the following issue for our review:

      I. Did the trial court err in denying [Appellant’s] motion to
      suppress evidence seized as a result of a warrantless search
      where the Commonwealth failed to establish by clear and
      convincing evidence that exigent circumstances existed or that
      valid consent was obtained?

Appellant’s Brief at 7 (full capitalization omitted).

      In her sole issue, Appellant argues that the trial court should have

suppressed the evidence recovered by the police officer in Appellant’s


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bedroom dresser.      Initially, Appellant contends that there were no exigent

circumstances that would have permitted the police to conduct a warrantless

search.     In addition, Appellant asserts the evidence should have been

suppressed because her consent to the search was not voluntary. Appellant

maintains    that,   although   she   consented   to   the   search,   under   the

circumstances, she did not give a voluntary consent.            We first review

Appellant’s allegation that she did not voluntarily consent to the search.

      The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. An appellate court

may consider only the Commonwealth’s evidence and so much of the

evidence for the defense as remains uncontradicted when read in the

context of the record as a whole.       Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d

75 (Pa. 2004)). Where the record supports the factual findings of the trial

court, the appellate court is bound by those facts and may reverse only if

the legal conclusions drawn therefrom are in error. Id. However, it is also

well settled that the appellate court is not bound by the suppression court’s

conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455

(Pa. 2003)).

            With respect to factual findings, we are mindful that it is
      the sole province of the suppression court to weigh the credibility
      of the witnesses. Further, the suppression court judge is entitled
      to believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.

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     Only factual findings which are supported by the record are
     binding upon this [C]ourt.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted). In addition, questions of the admission and exclusion of

evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion.       Commonwealth v.

Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

     Moreover, Pennsylvania Rule of Criminal Procedure 581, which

addresses the suppression of evidence, provides in relevant part as follows:

     (H) The Commonwealth shall have the burden . . . of
     establishing that the challenged evidence was not obtained in
     violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

            The Fourth Amendment to the United States Constitution
     and Article I, Section 8 of the Pennsylvania Constitution protect
     individuals from unreasonable searches and seizures, thereby
     ensuring the “right of each individual to be let alone.”
     Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
     854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
     Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

     To secure the right of citizens to be free from intrusions by police,

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as

those interactions become more intrusive.      Commonwealth v. Beasley,

761 A.2d 621, 624 (Pa. Super. 2000).

     It is undisputed that:


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      [s]tate case law recognizes three categories of interaction
      between police officers and citizens, which include: (1) a mere
      encounter, or request for information, which need not be
      supported by any level of suspicion, but which carries no official
      compulsion to stop or to respond; (2) an investigative detention,
      which must be supported by reasonable suspicion as it subjects
      a suspect to a stop and a period of detention, but does not
      involve such coercive conditions as to constitute the functional
      equivalent of an arrest; and (3) arrest or custodial detention,
      which must be supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc).

      If the police action becomes too intrusive, a mere encounter may

escalate into an investigatory stop or a seizure.              Commonwealth v.

Boswell, 721 A.2d 336, 340 (Pa. 1998). “Because the level of intrusion into

a person’s liberty may change during the course of the encounter, we must

carefully   scrutinize   the   record   for   any   evidence   of   such   changes.”

Commonwealth v. Blair, 860 A.2d 567, 572 (Pa. Super. 2004) (citing

Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000)).                 In determining

whether a mere encounter has risen to the level of an investigative

detention, our inquiry focuses on whether the individual in question has

been seized.

      To guide the crucial inquiry as to whether or not a seizure has
      been effected, the United States Supreme Court has devised an
      objective test entailing a determination of whether, in the view
      of all surrounding circumstances, a reasonable person would
      believe that he was free to leave.            In evaluating the
      circumstances, the focus is directed toward whether, by means
      of physical force or show of authority, the citizen-subject’s
      movement has in some way been restrained. In making this
      determination,    courts    must   apply    the   totality-of-the-

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      circumstances approach, with no single factor dictating the
      ultimate conclusion as to whether a seizure has occurred.

Strickler, 757 A.2d at 889-890 (citations omitted).

      We have long considered the following factors in analyzing the

conditions surrounding the escalation of police and citizen interactions:

      Circumstances to consider include, but are not limited to, the
      following: the number of officers present during the interaction;
      whether the officer informs the citizen they are suspected of
      criminal activity; the officer’s demeanor and tone of voice; the
      location and timing of the interaction; the visible presence of
      weapons on the officer; and the questions asked.

Beasley, 761 A.2d at 624-625 (quoting Boswell, 721 A.2d at 340).

Otherwise inoffensive contact between a member of the public and the police

cannot, as a matter of law, amount to a seizure of that person. Id.

      Additionally, we have stated that “there is no threshold of suspicion

needed for a request to search; consent to a search obviates the need for

any level of suspicion on the part of the police.”          Commonwealth v.

Shelly, 703 A.2d 499, 502 (Pa. Super. 1997) (citing Florida v. Bostick,

501 U.S. 429 (1991)). It is a well-established standard that a warrant is not

required when a person, with authority to do so, consents to a search.

Commonwealth v. Reid, 811 A.2d 530 (Pa. 2002). “To establish a valid

consensual search, the prosecution must first prove that the consent was

given during a legal police interaction, or if the consent was given during an

illegal seizure, that it was not a result of the illegal seizure; and second, that

the consent was given voluntarily.” Id. at 544.



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     To establish the constitutionality of a consent to search,

     the Commonwealth bears the burden of establishing that a
     consent is the product of an essentially free and unconstrained
     choice—not the result of duress or coercion, express or implied,
     or a will overborne—under the totality of the circumstances. As
     noted, 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. Additionally, although the
     inquiry is an objective one, the maturity, sophistication and
     mental or emotional state of the defendant (including age,
     intelligence and capacity to exercise free will), are to be taken
     into account.

Strickler, 757 A.2d at 901 (citations omitted).

     We have indicated that the following factors are pertinent to a

determination of whether consent to search is voluntarily given:

     1) the presence or absence of police excesses; 2) whether there
     was physical contact; 3) whether police directed the citizen’s
     movements; 4) police demeanor and manner of expression; 5)
     the location of the interdiction; 6) the content of the questions
     and statements; 7) the existence and character of the initial
     investigative detention, including the degree of coerciveness; 8)
     whether the person has been told that he is free to leave; and 9)
     whether the citizen has been informed that he is not required to
     consent to the search.

Commonwealth v. Powell, 994 A.2d 1096, 1102 (Pa. Super. 2010)

(quoting Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super.

2008) (en banc)).

     Our review of the record reflects that the search of Appellant’s dresser

drawer was not conducted pursuant to any type of detention of Appellant

and was consensual.     Specifically, testimony at the suppression hearing

indicated that at 7:00 p.m. on September 1, 2012, Patrolman Anthony Fatta


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of the Butler City Police Department was dispatched to Appellant’s residence

to assist the Butler Ambulance Service with a “female overdose patient.”

N.T., 7/8/13, at 3-4.      Patrolman Fatta explained that his purpose in

responding to an overdose is “primariliy to assist fire department and/or

EMS” and “to make sure that there [aren’t] any … unkempt needles or drug

paraphernalia at the scene.” Id. at 4. Patrolman Fatta indicated that it is

typical for a police officer to respond to every overdose call. Id. at 4-5.

      Patrolman Fatta further testified that when he arrived at the scene,

there were at least three emergency responders attending to Appellant, and

the officer had been advised that Appellant was administered a shot of

Narcan. Id. at 7, 5. Patrolman Fatta also offered the following regarding a

conversation about the location of drug paraphernalia:

      Q. And you said that there was a concern for the location of the
      paraphernalia. There was a conversation with regard to that, is
      that correct?

      A. Yes. Usually, from my experience, if an individual overdoses
      of that nature, usually it’s somewhere nearby or they are laying
      on top of it. So, we checked that immediate area, and it wasn’t
      there. And that’s what led us to believe either someone moved
      it or [Appellant] moved it … somewhere.

Id. at 7. Patrolman Fatta also stated the following:

      Once [Appellant] came back to she was questioned on where the
      drug paraphernalia was because … [i]t was apparent that either
      someone cleaned it or it was put away by someone due to the
      nature of her use [of] the heroin.       So, we evaluated the
      situation. And being that there [were] small children inside this
      residence, there was, you know, from the numerous toys and
      clothing that was around, we decided it was imperative for us to
      locate where [it was].


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Id. at 5.

      In addition, the following is reflective of the fact that Appellant

provided a voluntary verbal consent to the search of her dresser drawer in

an effort to locate the drug paraphernalia, following a non-coercive

discussion with Patrolman Fatta:

      Q. And the paramedics were able to revive [Appellant], is that
      correct?

      A. Yes.

      Q. And she was communicative at that point?

      A. Yes.

      Q. Okay. Did you have any trouble understanding her?

      A. No.

      Q. Did she have – appear to have any trouble understanding
      you at that point?

      A. No. She – once they administered their Narcan, she was
      back – back to normal.

      Q. Okay. And did you ask her about the location of any
      paraphernalia in the apartment?

      A. Yeah.

      Q. Okay. Describe that conversation for the Judge.

      A. It was basically as you stated, it was to the point where, you
      know, where are the needles, where [are] the empty stamp
      bags. Like I said, we were concerned for the children, or, you
      know, anyone’s well-being or whoever was going to take care of
      them.

      Q. This was all during the course of the treatment[,] as well[,]
      the paramedics were administering?



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     A. Yes. That was right before she was transported to Butler
     Memorial [Hospital]. That was prior to her leaving.

     Q. How would you characterize the tone of voice you used with
     her during this conversation?

     A. No different than where we’re at. Maybe a little bit sterner.
     I would say, to locate where the said items were.

     Q. And on how did you put it to her, how did you ask her about
     the paraphernalia?

     A. I just flat out asked her, [“]where is the – where is [sic] the
     needles or where is [sic] the empty stamps bags you used.[”]

     Q. And how did she respond to that?

     A. At first she was a little hesitant obviously providing that
     information. And the, you know, like I said, we used a little bit
     sterner, sterner tone with her. And we discovered that it was in
     her – in a dresser drawer. It’s one of the --

     Q. Were there any threats used?

     A. Oh, no.

     Q. Was she constrained in any fashion?

     A. Huh – huh.

     Q. Any handcuffs or anything like that?

     A. No.

     Q. Was she in a position to refuse your question, if she so
     desired?

     A. I don’t see why not. She wasn’t under arrest or anything.

     Q. And you weren’t – you didn’t use any commands with her, is
     that correct?

     A. Right.

     Q. That [“]you have to tell me[,”] or anything along those lines?

     A. Right.

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      Q. And she told you where to look for – where the paraphernalia
      was then?

      A. Yes.

Id. at 7-10.      In addition, Patrolman Fatta stated that the length of the

conversation with Appellant regarding the location of the drug paraphernalia

lasted “[l]ess than a minute.” Id. at 13.

      Because consent was given during a legal police interaction, we need

address only whether the consent was voluntary. Here, the police activity

preceding the consent was legitimate, no verbal or physical force was used,

one police officer was involved along with the emergency responders, and

there were no police excesses.          Although Appellant had undergone a

temporary medical emergency, there was no evidence that Appellant was

anything other than a competent adult at the time she provided the police

officer   with   the   requested   information   and   consent   to   retrieve   the

contraband. Furthermore, our review has indicated no duress or coercion on

the part of the police in securing the verbal consent of Appellant to search

the dresser drawer. The record supports the trial court’s determination with

regard to the evidence seized, and Appellant’s contrary claim with regard to

the suppression order lacks merit.          Having concluded that Appellant’s

consent to the search of the dresser drawer was voluntary, we need not

address the portion of her argument pertaining to whether there were

exigent circumstances that would have permitted the police to conduct a

warrantless search of the residence.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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