J-S35036-17

                                  2017 PA Super 183


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    DION JERRY WILLIAMS                        :   No. 1845 WDA 2016

               Appeal from the Order Entered November 17, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002101-2016


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                                FILED JUNE 13, 2017

        Appellant, the Commonwealth of Pennsylvania, appeals from the

November 17, 2016, order granting the pre-trial suppression motion filed by

Appellee, Dion Jerry Williams.1         Following our careful review of the record

and the law, we reverse the suppression order and remand for further

proceedings consistent with this decision.




____________________________________________



1
   The Commonwealth may appeal an interlocutory order suppressing
evidence where, as here, the Commonwealth provides a certification within
its notice of appeal that the order terminates or substantially handicaps the
prosecution. Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2
(Pa.Super. 2013); Pa.R.A.P. 311(d).
*
    Former Justice specially assigned to the Superior Court.
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        Appellee was charged with three counts of possession with the intent

to deliver a controlled substance (“PWID”), one count of possession of drug

paraphernalia, and two counts of possession of a controlled substance.2 On

September 22, 2016, with the assistance of counsel, he filed an omnibus

pre-trial motion seeking to suppress physical evidence seized by the police.

On October 6, 2016, the matter proceeded to a suppression hearing, at

which the Commonwealth presented the testimony of Erie Police Officers

Steven Deluca, Ira Bush, and Jason Russell.3

        Specifically, Officer Steven Deluca, who is a seventeen year veteran of

the    Erie   Police   Department, testified that, on March 18, 2016, at

approximately 11:00 p.m., he responded to a 911 call for a shooting at 1016

West 4th Street.       N.T., 10/6/16, at 5.      Upon arrival, he noticed there was

“blood all over the sidewalk leading up to the side of [the] residence.” Id. at

6. Officer Deluca followed the blood trail, discovering a dead pit bull, which

had been shot numerous times, lying in the                   backyard, and blood

“everywhere,” including outside the entry of the first floor apartment.         Id.

at 15-16.       Officer Deluca proceeded to the second floor apartment and

discovered a white male, who had been shot in the leg and face. Id. at 6.

Officer Deluca and other responding police units checked the second floor

____________________________________________


2
    35 P.S. §§ 780-113(a)(30), (32), and (16), respectively.
3
    The defense offered no witnesses.



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apartment and surrounding backyard for other victims, as well as the

shooter, and after finding neither, interviewed the neighbors. Id.

     A neighbor informed Officer Deluca that Appellee lived in the first floor

apartment, and he saw one of Appellee’s vehicles, a gray BMW, leaving the

area at about the time of the shooting. Id. at 7-8. Officer Deluca looked in

the windows of the first floor apartment and discovered that no one was

home; he was then advised that the other vehicle associated with Appellee’s

apartment was gone. Id. at 9. Officer Deluca passed on the information to

other patrol officers, and Appellee’s gray BMW was later stopped by Officer

Russell. Id.

     Appellee informed Officer Russell that he was staying at the Knights

Inn with a male friend because of ongoing domestic issues with his

girlfriend. Id. at 10. The Knights Inn is “just blocks from the shooting and

traffic stop” locations. See Trial Court Opinion, filed 11/17/16, at 2.

Appellee showed the officer a key card, indicated it was for room 111 of the

Knights Inn, and informed the officer that he was in the room at the time of

the shooting. N.T., 10/6/16, at 10.

     Based on this information, which was relayed to Officer Deluca, at

approximately 12:30 a.m. on March 19, 2016, Officer Deluca went to room

111 of the Knights Inn, “banged on the door,” and said, “Erie police. Come

out. We need to talk to you.”    Id.   No one responded to Officer Deluca’s




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knocking and announcing, so he tried the key card, which did not open room

111. Id. at 11.

      Officer Deluca proceeded to the front desk and was advised by the

manager that the key card, which had been in Appellee’s possession, was

not for room 111. Id. The manager, who scanned the key card, indicated

the key card was for room 231; however, the registry information related to

the room “was missing or misplaced or never existed” such that the

manager could not tell the officer who had rented or was occupying the

room. Id.   In comparison to room 111, room 231 was on the “complete

opposite side of the motel, the second floor versus the first floor.” Id. at 21.

Believing that another victim from the shooting might be in room 231,

Officer Deluca proceeded to the room. Id. at 12, 21.

      Officer Deluca knocked and announced his presence at room 231, but

there was no response. Id. Accordingly, he used the key card and opened

the door to room 231, at which time he smelled a strong odor of marijuana

and observed in plain view a duffle bag with money sticking out of it, a clear

Mason jar of marijuana, and a white powdery substance.          Id.   He did a

quick, three second sweep of the room for people, retreated from the room

empty-handed, telephoned the district attorney’s office, and requested a

search warrant for the room. Id. at 13. A search warrant was secured and

executed upon the room. Id. at 14.




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      On cross-examination, Officer Deluca clarified that, from the time he

arrived at the Knights Inn until he opened room 231, approximately ten

minutes had elapsed. Id. at 22. Officer Deluca admitted that, during this

time, Appellee was in police custody; however, based on the address of the

shooting, the description of Appellee’s vehicle fleeing the scene, and “the

totality of everything that was known to [him] at that exact time,” he

believed an injured victim or participant was in the Knights Inn room. Id. at

23.

      Officer Deluca indicated that he requested Knights Inn employees gain

access to the hotel’s surveillance tapes before he entered room 231, but the

employees were unable to do so. Id. at 24. He testified that he did not wait

for a warrant at this point because “the exigent circumstance of going into

that room was more prevalent than waiting for a warrant[.]” Id.

      Police Officer Ira Bush, a thirteen year veteran of the Erie Police

Department, testified that he also responded to the 911 call for the shooting

at issue. Id. at 27. He noticed “blood all over the place[,]” a dog dying the

backyard, and a man who had been shot in the face.       Id. at 27-28.    He

looked in the windows of the first floor apartment and noticed it appeared as

if the apartment had been vacated quickly with phone chargers and a

ketchup bottle strewn about the floor.     Id. at 28.   Neighbors informed

Officer Bush that Appellee, who lived in the first floor apartment, was “a

drug dealer.”   Id. at 29.   Officer Bush heard over the police radio that a


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neighbor informed the police that a vehicle fitting the description of

Appellee’s vehicle was seen “speeding away” from the scene “right after” the

shooting. Id. at 35-36, 41.

      Officer Bush testified he responded to the Knights Inn with Officer

Deluca and confirmed that the police spoke to the desk manager after the

key card at issue did not open room 111. Id. at 38. He testified the desk

manager scanned the key card and told the police the key card would open

room 231 but not room 111.       Id. at 39.   The manager indicated that the

hotel had no record or information as to who had rented the room; however,

only one key card had been issued for the room. Id. at 30, 38-39. Further,

the manager could not access the video surveillance system.

      Officer Jason Russell testified that he also responded to the 911 call for

the shooting, and upon arrival, he observed the gunshot victim, one or two

dead animals in the backyard, an “extensive amount of blood, and what

appeared to be two separate types of projectiles, both slug rounds[.]” Id. at

45.   Officer Russell indicated that neighbors informed the police that a

vehicle matching Appellee’s gray sedan was seen leaving the area without its

headlights activated “shortly after the shots had been fired[.]” Id.

      Officer Russell patrolled the surrounding area in his vehicle, and within

an hour of receiving the information about the vehicle, he saw a gray BMW

sedan “traveling at a high rate of speed at 7th and Sassafras, westbound.”

Id. at 47.    He ran the registration for the vehicle and discovered it was


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registered to Appellee.   Id.   Accordingly, he initiated a stop of the vehicle

at 11:45 p.m. Id. at 48, 59.

      Officer Russell discovered Appellee driving the vehicle with a male

passenger. Officer Russell testified that the following transpired:

             Basically in the roadside conversation [Appellee] indicated
      that he was aware there had been a shooting at his residence
      and that he was actually, in fact, headed towards the residence
      at that time. He indicated that at the time of the shooting he
      had been at the Knights Inn hotel on West 10th Street. He
      specifically stated that he had been in room 111, opened his
      wallet, and displayed a key card for the hotel room as kind of
      proof that that was where he was coming from.
                                   ***
             [Appellee] said he had been in an argument with his
      fiancée and that he had gone to the Knights Inn to create some
      distance, that he had rented a room to get away from that
      situation.

Id. at 48-49.

      Officer Russell removed Appellee, as well as the passenger from the

vehicle, and conducted a pat-down; the officer seized a stolen nine

millimeter pistol from the passenger. Id. at 49. Appellee had no weapons

on his person.   Id.   Appellee and his passenger were placed in separate

police cruisers, and the police did a “cursory sweep of [Appellee’s] vehicle to

ensure there were no additional weapons.”         Id. at 50.    Officer Russell

indicated that “[a]t this point we found that [Appellee] had taken the hotel

key card from his wallet and discarded it in the vehicle.        It was found

dropped between the driver’s side seat and center console of the vehicle.”

Id. Officer Russell seized the key card. Id.


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J-S35036-17


      Officer Russell testified that, on the way to the police station, the

following transpired:

      [Appellee] appeared nervous.       He spoke quite a bit, made
      several unsolicited utterances, the fact that he knows that the
      individual shot was an upstairs neighbor, he was a good guy,
      continually asked how he was doing, what his status was, and
      also kind of reiterated that he had been at this Knights Inn room
      111 with an individual that he referred to as Todd.

Id. at 51.

      Officer Russell asked other officers to meet him at the police station,

and he gave them the following information:

            I provided [the officers] with the information that
      [Appellee] had indicated he had been at room 111 with another
      unknown individual only known as Todd, that he had attempted
      to discard the key, and that [the police] were going to be
      speaking with him in regard to the shooting.
            So at that point I believe they were going to identify any
      additional suspects, victims, or information that may be relevant
      to room 111.

Id. at 52.

      On cross-examination, Officer Russell confirmed that he saw neither

blood nor bullet holes in Appellee’s vehicle. Id. at 54. He also confirmed

that he requested other officers proceed to the Knights Inn to determine

whether there were any additional victims, witnesses, or actors in

connection with the shooting. Id. at 55. Officer Russell indicated that the

entry into room 231 occurred at approximately 12:30 a.m., and the

subsequent warrant was executed at approximately 1:00 a.m.        Id. at 58.

Appellee was in police custody during this time. Id.


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J-S35036-17


     At the conclusion of the testimony, defense counsel indicated that

Appellee was not challenging the stop and search of his vehicle; however,

Appellee was challenging the police’s search of room 231 of the Knights Inn

without a search warrant.     Id. at 60-61.      The Commonwealth responded

that, under the circumstances of the case, Appellee failed to prove he had a

legitimate expectation of privacy in room 231. The Commonwealth further

argued that, assuming Appellee had a legitimate expectation of privacy, the

entry of room 231 was justified under either the exigent circumstances or

protective sweep exceptions to the warrant requirement. Id. at 66-84.

     By order and opinion entered on November 17, 2016, the trial court

granted Appellee’s pre-trial suppression motion on the basis the police

improperly entered room 231 of the Knights Inn absent a warrant.

Specifically, the trial court found Appellee had a legitimate, reasonable

expectation of privacy in room 231, and the police’s entry into the room was

not justified based on either the exigent circumstances or protective sweep

exceptions   to   the   warrant   requirement.    Consequently,   although   the

contraband was clearly visible when the police entered room 231, the trial

court found that the police did not view it from a lawful vantage point. On

December 5, 2016, the Commonwealth filed a notice of appeal to this Court,

and all Pa.R.A.P. 1925 requirements have been met.

     On appeal, the Commonwealth avers the lower court erred in granting

Appellee’s suppression motion.       Specifically, the Commonwealth argues


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J-S35036-17


Appellee failed to prove that he had a legitimate expectation of privacy in

room 231 of the Knights Inn. For the reasons discussed in detail infra, we

agree with the Commonwealth that Appellee failed to demonstrate he had a

legitimate expectation of privacy in room 231 of the Knights Inn, and

therefore, the suppression court erred in granting Appellee’s motion to

suppress the physical evidence seized therefrom.4

       Our   standard     of   review    of    a   lower   court’s   order   granting   a

defendant/appellee’s motion to suppress evidence is well established:

       When the Commonwealth appeals from a suppression order, we
       follow a clearly defined standard of review and consider only the
       evidence from the defendant’s witnesses together with the
       evidence of the prosecution that, when read in the context of the
       entire record, remains uncontradicted. The suppression court’s
       findings of fact bind an appellate court if the record supports
       those findings. The suppression court’s conclusions of law,
       however, are not binding on an appellate court, whose duty is to
       determine if the suppression court properly applied the law to
       the facts. Commonwealth v. Miller, 56 A.3d 1276, 1278–79
       (Pa.Super. 2012) (citations omitted). “Our standard of review is
       restricted to establishing whether the record supports the
       suppression court’s factual findings; however, we maintain de
       novo review over the suppression court’s legal conclusions.”
       Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
       (2010) (citation omitted).
____________________________________________


4
  The Commonwealth further argues that the police were justified in entering
the hotel room pursuant to the exigent circumstances exception to the
warrant requirement. However, in light of our conclusion that Appellee
failed to demonstrate a reasonable expectation of privacy, we need not
address the Commonwealth’s alternate argument. See Commonwealth v.
Enimpah, 630 Pa. 357, 106 A.3d 695, 702 (2014) (“[I]f the evidence shows
there was no privacy interest, the Commonwealth need prove no more; in
terms of the court’s review, it need go no further if it finds the defendant has
not proven a reasonable expectation of privacy.”).



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Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa.Super. 2016).

      “Here, as noted supra, Appellee presented no witnesses, and the

Commonwealth presented [three]. Therefore, the Commonwealth's evidence

is uncontradicted.”   Commonwealth v. Petty, 1739 EDA 2016, 2017 WL

943259, *2 (Pa.Super. filed 3/10/17) (citing Commonwealth v. Smith,

979 A.2d 913, 917–18 (Pa.Super. 2009) (The “Commonwealth's evidence is

essentially uncontradicted” because the defense did not present any

witnesses at the suppression hearing.)).

            The Fourth Amendment protects: “[t]he right of the people
      to be secure in their persons, houses, papers, and effects,
      against unreasonable searches and seizures.” U.S. Const.
      amend. IV; Pa. Const. art. 1, § 8. The protection of the Fourth
      Amendment does not depend on a property right in the invaded
      place but does depend on whether the person who claims the
      protection of the Amendment has a legitimate expectation of
      privacy in the invaded place.

Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115, 1118 (1993)

(citation omitted).

      Although Appellee was charged with a possessory offense, and as such

has automatic standing to challenge the suppression of the items seized, it

was appropriate for the suppression court to examine the question of

Appellee’s privacy interest in the place searched (room 231 of the Knights

Inn). See Enimpah, supra. It is well-settled that:

             An expectation of privacy will be found to exist when the
      individual exhibits an actual or subjective expectation of privacy
      and that expectation is one that society is prepared to recognize
      as reasonable. In determining whether a person’s expectation of

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      privacy is legitimate or reasonable, the totality of the
      circumstances must be considered and the determination will
      ultimately rest upon a balancing of the societal interests
      involved. “The constitutional legitimacy of an expectation of
      privacy is not dependent on the subjective intent of the
      individual asserting the right but on whether the expectation is
      reasonable in light of all the surrounding circumstances.”

Commonwealth v. Viall, 890 A.2d 419, 421–22 (Pa.Super. 2005)

(citations   and   quotation   omitted).   Further,   our   Supreme   Court   has

emphasized that it is a defendant’s burden to prove that he has both a

subjective expectation of privacy and that the subjective expectation is one

which society is willing to respect as legitimate.          Commonwealth v.

Millner, 585 Pa. 237, 888 A.2d 680 (2005).

      Pennsylvania jurisprudence recognizes that “[a] hotel room can [ ] be

the object of Fourth Amendment protection as much as a home or an office.”

Commonwealth v. Dean, 940 A.2d 514, 519 (Pa.Super. 2008) (quotation

marks, quotation, and citation omitted).       In this vein, our Supreme Court

has held that a registered hotel guest enjoys a legitimate expectation of

privacy in a hotel room during the period of time in which the room rental

remains valid.     Brundidge, supra.       However, that expectation does not

exist in the room or in any item in plain view to anyone after checkout time,

after the rental period has ended, and/or after the guest’s right to occupancy

has lapsed. Id. at 173, 620 A.2d at 1118.

      In the case sub judice, the uncontradicted evidence presented at the

suppression hearing reveals Appellee informed Officer Russell that he was


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J-S35036-17


staying at the Knights Inn with a male friend. He pulled a key card out of

his wallet, displayed it to the officer, and specifically indicated he was

staying in room 111. However, when Officer Russell’s attention was diverted

elsewhere, Appellee placed the key card between the driver’s side seat and

center console of his vehicle. Officer Russell discovered the key card during

a search of Appellee’s vehicle and seized it.

      As he was being transported to the police station, Appellee reiterated

that, at the time of the shooting, he was in room 111 of the Knights Inn with

a male friend.   Subsequently, at the Knights Inn, it became clear to the

police that the key card, which had been in Appellee’s possession, was not

issued in connection with room 111; however, the key card was issued in

connection with room 231. As the registry information for room 231 “was

missing or misplaced or never existed,” N.T., 10/6/16, at 11, the manager of

the hotel was unable to provide information as to who had rented or was

occupying room 231.      Further, the manager did not have access to the

surveillance cameras.    However, the manager indicated that the key card

was the sole key issued for the room.

      Based upon this evidence, we agree with the Commonwealth that

Appellee failed to demonstrate a subjective expectation of privacy in room

231 of the Knights Inn, much less one that society would accept as

reasonable.   Appellee produced no evidence at the suppression hearing

indicating that he was a hotel guest of room 231. That is, he presented no


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evidence that he was properly occupying room 231, let alone that he had

rented the room and, if so, for what period of time.

      Moreover, the Commonwealth’s evidence, upon which Appellee relied

to prove that he had an expectation of privacy, does not demonstrate that

Appellee was a registered hotel guest of room 231 at the time of the police’s

entry into the room. See Brundidge, supra. At most, the Commonwealth’s

evidence demonstrated that Appellee was in possession of the key card for

room 231.    However, inasmuch as the manager was unable to produce a

registry or any information as to who had rented or was occupying room

231, and thus how Appellee came to be in possession of the key card, we

conclude this evidence alone does not establish Appellee’s personal privacy

interest in room 231. Further, Appellee never claimed to the police that he

was occupying or a guest of room 231; but rather, Appellee repeatedly

informed the police that he was a guest of room 111 of the Knights Inn.

      Finally, it bears mentioning that the trial court’s ruling that Appellee

had a legitimate expectation of privacy was based, in part, on the court’s

findings that Appellee lied to the police about which room he was occupying

at the Knights Inn, as well as the fact he attempted to hide the key card in

his vehicle. The trial court reasoned that Appellee was actually attempting

to protect his “privacy” in the room, as well as the illegal contraband

contained therein, through his subterfuge. N.T., 10/6/16, at 62. However,

our Supreme Court has held that “[a] defendant’s attempt to secrete


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evidence of a crime is not synonymous with a legally cognizable expectation

of privacy. A mere hope for secrecy is not a legally protected expectation.”

Millner, 585 Pa. at 257-58, 888 A.2d at 692 (quotation marks and quotation

omitted).   Thus, we specifically reject the trial court’s analysis that

Appellee’s conduct through subterfuge constitutes a legitimate, reasonable

expectation of privacy. See id.

      In short, Appellee failed to establish a subjective and reasonable

expectation of privacy in the particular hotel room at issue. Accordingly, in

such circumstances, there was no need for the Commonwealth to establish

the lawfulness of the police entry into the hotel room and the seizure of the

contraband therefrom. Thus, there was no basis upon which the lower court

could properly order its suppression.

      Reversed; Remanded; Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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