J-S75015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.Q., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

APPEAL OF : COMMONWEALTH OF
PENNSYLVANIA

                                                    No. 349 EDA 2016


                    Appeal from the Order January 4, 2016
             In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-JV-0002001-2015



BEFORE: BOWES, MOULTON AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 15, 2017

       The Commonwealth appeals from the January 4, 2016, order

suppressing evidence in this delinquency adjudication of S.Q., a minor, for

conduct constituting possession of a firearm by a minor, conspiracy, and

tampering with/fabricating physical evidence.1 We affirm.

       The following facts were adduced at the suppression hearing.     On

September 22, 2015, at approximately 8:01 p.m., Philadelphia Police

Officers Matthew Lally and Collin Berg received a radio call of gunshots at
____________________________________________


1
  A joint suppression hearing for Defendant and co-defendant Nasir Carter
was held. The evidence was not suppressed as to Carter, presumably
because he had no expectation of privacy in the house that police entered
without a warrant.
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the intersection of North 27th Street and Clearfield Street in Philadelphia.2

When the two officers arrived at the scene, two males suffering from

gunshot wounds were lying in the middle of a basketball court.          After

providing assistance to the wounded men, the officers surveyed the area

for potential witnesses for about twenty minutes.

       The officers did not locate any witnesses to the shooting.     Based

upon general information they gleaned at the scene, the officers learned

that the shooter “possibly went into a residence at 3239 North 26 th Street.”

N.T., 11/10/15, at 8.3 However, they had no description of the shooter, no

information about the number of suspects involved, or any idea how many

were located at 3239 N. 26th Street. Id. at 24. Officer Berg confirmed at

the suppression hearing that he and his partner had no additional

information when they decided to set up surveillance at that address.



____________________________________________


2
   Although Officer Berg originally testified that he and his partner arrived
at the scene at 9:40 p.m., when confronted with the crime scene log that
indicated that they arrived at 8:01 p.m. and left the scene at 10:00 p.m.,
he confirmed that the log was accurate.
3
   In a warrant obtained after the police action at issue herein, the
information was attributed to affiant Officer Earl Tillman, who attested that
he received a phone call from a corrections officer with whom he had
formerly worked. The former co-worker, who was known to the affiant,
told Officer Tillman that her mother lives on the 3200 block of 26 th Street
and that the males who may have been involved ran into 3239 N. 26 th
Street.



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Similarly, Detective Joseph Cremen testified that had no identifying

information on the suspects when he left the scene.

        Officers Lally and Berg proceeded to 3239 North 26th Street in their

unmarked police vehicle. Lights were on in the residence and, through the

windows, they could see the shapes of people moving around.                 After

surveilling the house for thirty to thirty-five minutes, the officers observed

a male walking from Allegheny Avenue northbound on 26th Street.                  He

entered the home under surveillance. Due to his distinctive white shorts

covered in black diamonds and triangles, the officers recognized him as an

individual they had observed near the basketball court after the shooting.

Id. at 9, 25.     The individual was later identified as Ramez Quarles, and

there is no indication that the officers had any information linking him to

the shooting.

        Officer Berg proceeded around the back of 3239 N. 26 th Street to

determine if there were rear exits from the property. After ten minutes in

the alley, he saw two males leave the house, enter the back alleyway, and

head southbound.         Officer Berg notified his backup, uniformed Officers

Washington and McCuen,4 who arrived almost immediately and blocked the

South exit to the alleyway. Officer Berg remained at the North end of the

alley. Upon seeing police in uniform, the two men turned around, ran back
____________________________________________


4
    The first names of the officers are not contained in the certified record.



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towards the rear door to 3239 N. 26th Street. Officer Berg illuminated his

flashlight and announced himself as a police officer as the two males re-

entered the residence. Id. at 9-11.

      By that time, approximately forty-five minutes to one hour had

elapsed since the officers first responded to the shooting.   Officer Berg

testified that he believed that the males he had seen were involved in the

shooting, they could possibly be armed, and he feared that they would

destroy or eliminate evidence.    Id. at 11.   Consequently, Officer Berg

followed them through the door at the rear of the residence.        As he

entered, another man attempted to run out the front door but was stopped

by Officer Lally.   Officers McCuen and Washington followed Officer Berg

into the home through the rear door.

      Officer Berg testified that they stopped four men in the living room,

asked them to get on the ground and show their hands. They were cuffed.

Then Officers Berg and Lally conducted a protective sweep of the residence

to ascertain whether there were other individuals on the premises. Officer

Berg discovered co-defendant Nasir Carter in an upstairs bathroom.      He

was sweating, breathing heavily, and appeared nervous.        He was not

wearing a shirt.    The officer brought Carter downstairs and secured him

with the others.

      While continuing the sweep of the residence, the Officer went into a

second floor rear bedroom.     A little boy, approximately four years old,

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followed the officer into the room and told the officer that the room

belonged to him and his brother. The child stated there was no one there

and that everything was okay.5 As the officer opened the closet door, the

boy started to close it.        In that interval, the officer thought he saw a

handgun on the top shelf of the closet. He observed what he believed was

about one-quarter of an inch of the barrel protruding from an article of

black clothing.     The officer grabbed the closet door, pulled it open, and

confirmed that there was a gun and cell phone located in the closet.

However, he did not touch the items at that time. All of the males were

transported to Northwest Detectives for further investigation of the firearm

and a possible link to the shooting.

        Officers remained on site to protect the scene.      At 1:17 a.m. on

September 23, 2015, Detective Stephen Grace obtained a search warrant

for the 3239 North 26th Street residence, seeking any or all firearms or

ballistic evidence, matching clothing or proof of residency.       The search

warrant was admitted into evidence at the suppression hearing as Exhibit

C-6.6    The detective executed the warrant at 2:45 a.m.        Id. at 85-88.

Defendant’s mother, Twanna Sloan, testified that she resided at that

____________________________________________


5
   Officer Berg testified that there was a thirty or thirty-five-year-old
female, and two twelve to fifteen-year-old females in the home.
6
    No exhibits are contained in the certified record.



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address with Defendant and her other children.7 The detective recovered a

Ruger .380 semiautomatic handgun from the shelf in the closet in the rear

second floor bedroom.

       Initially, Defendant was interviewed as a witness by Detective Ted

Wolkiewicz.     Thereafter, the detective received information from several

sources that suggested that Defendant was involved in the shooting. 8 He

was questioned a second time, and Defendant provided a statement that

was introduced into evidence.            Later, at approximately 3:00 a.m., he

provided a second statement in which he acknowledged that he did not tell

the truth in his prior statement. He told the Detective that he was at home

when the shooting occurred. Defendant saw someone bring the gun into

the house. Someone told him to go downstairs and get the gun and “put it




____________________________________________


7
  It is undisputed that Defendant resided with his mother and siblings at
the N. 26th Street address, and thus, he had a reasonable expectation of
privacy in the house.
8
  Although Detective Wolkiewicz testified he phoned Defendant’s mother
and received her permission to interview him, N.T. Motion Vol. I, 10/11/15,
at 78, 79, 83, Defendant’s mother, Ms. Sloan, testified that she was not
contacted by the Detective and did not give permission to police to
question her minor son. Id. at 105. Since Defendant prevailed at the
suppression hearing, we must credit the evidence offered by Defendant’s
mother, Ms. Sloan, on his behalf.



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up.” He found it in the basement ceiling, wrapped in black pants, and he

took it upstairs and put it in the closet in his room.9 Id. at 75.

       Defendant was charged with conduct constituting possession of a

firearm by a minor, conspiracy, and tampering with/fabricating physical

evidence. Defendant and Carter both moved to suppress the handgun and

their incriminating statements. Following the January 4, 2016 suppression

hearing, the Honorable Abram Frank Reynolds declined to suppress the

evidence against Carter, but did suppress the evidence as to Defendant.

The suppression court ruled that the police lacked probable cause and

exigent circumstances to justify their warrantless entry of Defendant’s

home.     All of the evidence acquired thereafter, including the gun and

Defendant’s statements to police, were the product of that illegal entry,

illegal arrest techniques, and interrogation procedures. The court reasoned

that, “the police had the home under their control and could have held all

the parties inside the premises while they gave their idea of probable cause

to a magistrate and secured a warrant.”          Pa.R.A.P. 1925(a) Opinion,

3/31/16, at 5.

____________________________________________


9
   Co-defendant Carter initially told Detective Joseph Cremen that he went
to the basketball court with two males identified only as Quadir and Kasim,
but denied involvement in the shooting. He later admitted that when
someone else began shooting, he pulled out his gun and shot it repeatedly.
Then he ran to Defendant’s house and hid the gun in the basement under a
step. N.T., 11/10/15, at 12-15.



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       The Commonwealth filed this interlocutory appeal, certifying that the

grant of the suppression motion impeded its ability to proceed with the

delinquency     adjudication     against       Defendant.10   The   Commonwealth

presents one issue for our consideration: “Did the trial court err in

suppressing evidence where police reasonably pursued two fleeing,

potentially armed suspects of a recent shooting into a home that contained

a number of people?” Commonwealth’s brief at 4.

       This Court reviews the grant of a suppression motion under well-

established principles. We consider the evidence of the defendant, as the

prevailing party below, and any evidence of the prosecution that is

uncontradicted in the context of the suppression record. Commonwealth

v. Walls, 53 A.3d 889, 892 (Pa.Super. 2012). “Where the record supports

the factual findings of the suppression court, we are bound by those facts

and may reverse only if the legal conclusions drawn therefrom are in

error.” Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2011)

(internal quotation marks and citations omitted).             However, where the

suppression court’s determination turns on allegations of legal error, its

____________________________________________


10
    Pa.R.A.P. 311(d) provides that the “In a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as
of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.”



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conclusions of law are not binding on this Court. Id. Our Supreme Court

has clarified that the scope of appellate review is limited to the evidence

produced at the suppression hearing, not the entire record.         In the

Interest of L.J., 79 A.3d 1073 (Pa. 2013).

.     The essential question presented for our review is whether the

warrantless entry by police into the residence on 3239 N. 26th Street was

lawful.   We start from the premise that the Fourth Amendment to the

United States Constitution protects "the right of the people to be secure in

their persons, houses, papers and effects, against unreasonable searches

and seizures[.]" U.S. Const. Amend. IV.      The Pennsylvania Constitution

similarly provides that "people shall be secure in their persons, houses,

papers and possessions from unreasonable searches and seizures, and no

warrant to search any place or to seize any person or things shall issue

without describing them as nearly as may be, nor without probable cause,

supported by oath or affirmation subscribed to by the affiant." Pa.Const.

Art. I, § 8.   Thus, as a general rule, “a warrantless search or seizure of

persons, places, or possessions is unconstitutional under both the federal

and Pennsylvania Constitution, unless both probable cause and exigent

circumstances exist.”      Commonwealth v. Rushing, 71 A.3d 939

(Pa.Super. 2013) (reversed on other grounds) (citing Commonwealth v.

Wright, 961 A.2d 119, 137 (Pa. 2008).




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      “Probable cause exists where the facts and circumstances within the

officer's knowledge are sufficient to warrant a prudent individual in

believing that an offense was committed and that the defendant has

committed it."     Commonwealth v. Griffin, 24 A.3d 1037, 1042

(Pa.Super. 2011) (citation omitted). Additionally, "[t]he evidence required

to establish probable cause for a warrantless search must be more than a

mere suspicion or a good faith belief on the part of the police officer."

Griffin, supra at 1042.

      Moreover, it is well established that “probable cause alone will not

support a warrantless search or arrest in a residence . . . unless some

exception to the warrant requirement is also present. . . . [A]bsent consent

or exigent circumstances, private homes may not be constitutionally entered

to conduct a search or to effectuate an arrest without a warrant, even

where probable cause exists.”     Commonwealth v. Santiago, 736 A.2d

624, 631 (Pa.Super. 1999) (citations omitted; emphasis in original).

"Exigent circumstances arise where the need for prompt police action is

imperative, either because evidence is likely to be destroyed, or because

there exists a threat of physical harm to police officers or other innocent

individuals." Griffin, supra at 1042 (quoting Commonwealth v. Stewart,

740 A.2d 712, 717).         When evaluating whether there are exigent

circumstances which justify a warrantless search, "a court must balance the

individual's right to be free from unreasonable intrusions against the interest

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of society in quickly and adequately investigating crime and preventing the

destruction of evidence." Griffin, supra at 1042.

      In Commonwealth v. Roland, 637 A.2d 269 (Pa. 1994), our

Supreme    Court    explained   that        “[i]n   determining    whether    exigent

circumstances exist, a number of factors are to be considered,” such as,

      (1) the gravity of the offense, (2) whether the suspect is
      reasonably believed to be armed, (3) whether there is above
      and beyond a clear showing of probable cause, (4) whether
      there is strong reason to believe that the suspect is within the
      premises being entered, (5) whether there is a likelihood that
      the suspect will escape if not swiftly apprehended, (6) whether
      the entry was peaceable, and (7) the time of the entry, i.e.,
      whether it was made at night. These factors are to be balanced
      against one another in determining whether the warrantless
      intrusion was justified.

      Other factors may also be taken into account, such as whether
      there is hot pursuit of a fleeing felon, a likelihood that evidence
      will be destroyed if police take the time to obtain a warrant, or
      danger to police or other persons inside or outside the dwelling.
      Nevertheless, police bear a heavy burden when attempting to
      demonstrate an urgent need that might justify warrantless
      searches or arrests.

Roland, 637 A.2d at 270–71 (quotations and citations omitted).

      In the present case, the suppression court concluded that neither

probable cause nor exigent circumstances existed.                 Pa.R.A.P 1925(a)

Opinion, 3/31/16, at 5.         In seeking to reverse that finding, the

Commonwealth focuses on demonstrating exigent circumstances and pays

short shrift to the suppression court’s finding that probable cause was

lacking.    The    only   evidence     of     probable   cause    offered    by   the



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Commonwealth was a tip from an unidentified person that the shooter

possibly entered the residence at 3239 North 26th Street; the officers’

observation of an individual who was standing at the fringe of the crime

scene after the altercation entering that home; and two individuals starting

to leave that residence at a late hour, but returning to the home upon

seeing police.   Commonwealth’s brief at 12.    The Commonwealth argues

the suppression court failed to consider the totality of the circumstances

and placed undue weight on the fact that the tip came from an unknown

person.

      The Commonwealth’s evidence was insufficient to establish probable

cause, i.e., to warrant a prudent individual to believe that an offense was

committed and the perpetrator was located in that residence. See Griffin,

supra. The tip came from an unnamed source that there was a possibility

that someone may have gone into 3239 N. 26th Street, and it was

uncorroborated. The officer was not given a description of the shooter or

of any other persons involved in the altercation, or any specific information

regarding the persons who allegedly went into the residence at that

address. Id. at 24. Although the police officers recognized an individual

whom they had seen at the crime scene entering that residence later, that

person was not implicated in the shooting. Additionally, the police had no

reasonable belief that the two individuals who turned and ran back into the

residence to avoid police were involved in the crime at hand.           See

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Commonwealth v. Pegram, 301 A.2d 695, 697 (Pa. 1973) (flight, in and

of itself, cannot constitute probable cause to arrest).

      We conclude that the suppression court’s finding that there was no

probable cause to enter the residence is factually and legally supported.

Absent probable cause, we do not reach the issue of whether there were

exigent circumstances that would justify the warrantless entry and search.

Consequently, we affirm the trial court’s order suppressing the gun and

Defendant’s statements.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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