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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


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



____________________________________________


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)


____________________________________________


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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