J-S73031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SONYA MCNEILL,                             :
                                               :
                       Appellant               :       No. 737 MDA 2019

          Appeal from the Judgment of Sentence Entered April 4, 2019
               in the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0001098-2018

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: FEBRUARY 7, 2020
        Sonya McNeill (“McNeill”) appeals from the judgment of sentence

imposed following her conviction of hindering apprehension.1 We affirm.

        On December 23, 2017, Harrisburg City Patrol Officer Christopher

Auletta (“Officer Auletta”) was working the overnight shift when he received

a call regarding a domestic violence incident at McNeill’s residence. When

Officer Auletta arrived at McNeill’s residence at approximately 12:30 a.m., he

could hear screaming, and saw two children sitting on the front porch. One

of the children indicated that Freddie Reid, Jr. (“Reid”), who had an active

arrest warrant for aggravated assault, was inside the residence. The child led

Officer Auletta into the house, where Officer Auletta could hear a woman

yelling. Officer Auletta announced his presence several times, but received


____________________________________________


1   18 Pa.C.S.A. § 5105(a)(1).
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no response until he entered the kitchen, where McNeill and two younger

females were arguing. Officer Auletta noticed that McNeill smelled of alcohol

and had watery, red eyes. McNeill stated several times that Reid was not in

the residence. Officer Auletta and two additional police officers proceeded to

search the open areas on the first and second floors of the residence. Reid

was found in an upstairs bedroom and arrested. “[McNeill] failed to cooperate

with police, indicated that [Reid] was not there, resisted arrest, and tried to

pull away and spin around when being detained.” Order, 11/8/18, at 1-2.

      On July 27, 2018, McNeill filed an Omnibus Pretrial Motion, including,

inter alia, a Motion to Suppress, asserting that any evidence obtained through

the warrantless, nighttime search of her residence for Reid must be

suppressed. Following a suppression hearing, the suppression court denied

McNeill’s Motion to Suppress.

      The matter proceeded to a jury trial, after which McNeill was convicted

of hindering apprehension. The trial court subsequently sentenced McNeill to

one year of county probation, 50 hours of community service, and a $100 fine.

McNeill filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)




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Concise Statement of errors complained of on appeal.2

       McNeill now raises the following issues for our review:

       I. The suppression court found exigent circumstances justified in
       a warrantless, nighttime search of [McNeill’s] home for a wanted
       suspect[,] when there was no evidence the suspect was armed[;]
       no one needed immediate assistance[;] there was no likelihood of
       escape, the police were not in hot pursuit of a fleeing felon[;] and
       no imminent danger prevented them from securing the residence
       and obtaining a search warrant. Did the court thus commit an
       error of law, or abuse its discretion in refusing to suppress
       evidence obtained from that search?

       II. Police are not permitted to create exigent circumstances in
       order to justify a warrantless search. In this case, the police
       believed a wanted suspect was inside a home and posed a danger
       to everyone inside. When the police kept [McNeill] and her
       children inside the home and justified their need to search the
       home immediately because of the perceived danger to those
       inside, did the suppression court thus commit an error of law, or
       abuse its discretion in refusing to suppress evidence obtained from
       that unlawful search?

Brief for Appellant at 3-4.

       We will address McNeill’s claims together, as they are related. In her

first claim, McNeill argues that the suppression court erred in denying her

Motion to Suppress, because the police improperly conducted a warrantless

search of her residence, without exigent circumstances.        See id. at 8-25.



____________________________________________


2 McNeill’s Concise Statement was untimely filed. However, as the trial court
did not acknowledge the untimeliness of the Concise Statement, and was able
to address McNeill’s appeal issues, we will consider McNeill’s claims. See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) (stating
that “[w]hen counsel has filed an untimely Rule 1925(b) statement and the
trial court has addressed those issues[,] we need not remand and may address
the merits of the issues presented.”).

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McNeill claims that the police had no reason to believe that Reid was armed

at the time they decided to search McNeill’s residence. Id. at 13-14. McNeill

also asserts that any information leading the police to believe that Reid was

inside the residence was contradictory, because one witness indicated that

Reid was inside, and both McNeill and another witness indicated that he was

not. Id. at 15. According to McNeill, the police officers could not hear any

noise coming from within the house, and McNeill had asked them to leave.

Id. at 16. Further, McNeill asserts that Reid was not likely to escape from the

residence, and the police forcibly entered her home. Id. at 16-17. McNeill

also specifically highlights the fact that the police officers searched her

residence in the middle of the night, a fact which, McNeill believes, indicates

an even more serious invasion of privacy, absent evidence that anyone inside

the home was in imminent danger. Id. at 18-20, 21-25. But see also id. at

20 (wherein McNeill concedes that the officers’ entry was justified to ascertain

whether anyone inside was in danger or needed immediate assistance).

         In her second claim, McNeill argues that “the police created the very

exigency they relied on.” Id. at 26. Specifically, McNeill contends that “[t]he

officers’ concern that the home needed to be searched immediately, because

the occupants were in danger, is self-serving because the police created that

danger by keeping the occupants inside the home while they searched it.” Id.

at 27.

               An appellate court’s standard of review in addressing a
         challenge to the denial of a suppression motion is limited to

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      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. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation,

brackets and ellipses omitted).

             Art. 1, Sec. 8 of the Pennsylvania Constitution and the
      Fourth Amendment of the United States Constitution protect
      against unreasonable searches and seizures. The expectation of
      privacy protected [by] the United States and Pennsylvania
      Constitutions has been held to be greatest in one’s home. A
      warrantless search of a residence is per se unreasonable unless
      justified by a specific exception to the warrant requirement.

Commonwealth v. Richter, 791 A.2d 1181, 1184 (Pa. Super. 2002) (en

banc). “A warrantless search of a private residence may take place … if the

police are acting under exigent circumstances.”          Commonwealth v.

McAliley, 919 A.2d 272, 276 (Pa. Super. 2007). The Commonwealth must

also establish that “the exigency was in no way attributable to the decision by

the police to forego seeking a warrant.” Commonwealth v. Gray, 211 A.3d

1253, 1261 (Pa. Super. 2019) (citation and quotation marks omitted).




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      The following factors should be considered in determining whether

exigent circumstances exist:

      (1) the gravity of the offense; (2) whether there is a reasonable
      belief that the suspect is armed; (3) whether there is a clear
      showing of probable cause; (4) whether there is a strong showing
      that the suspect is within the premises to be searched; (5)
      whether there is a likelihood that the suspect will escape; (6)
      whether the entry was peaceable; (7) the time of entry, i.e., day
      or night; (8) whether the officer was in hot pursuit of a fleeing
      felon; (9) whether there is a likelihood that evidence may be
      destroyed; and (10) whether there is a danger to police or others.

Commonwealth v. Walker, 836 A.2d 978, 981 (Pa. Super. 2003). “These

factors are to be balanced against one another in determining whether the

warrantless intrusion was justified.”   Richter, 971 A.2d at 1185 (citation

omitted); see also Gray, 211 A.3d at 1261 (explaining that the totality of the

circumstances must be considered “as seen through the eyes of the trained

officer.” (citation and quotation marks omitted)).

      Further,

      exigent circumstances exist where the police reasonably believe
      that someone within a residence is in need of immediate aid.
      Additionally, it is widely recognized that situations involving the
      potential for imminent physical harm in the domestic context
      implicate exigencies that may justify limited police intrusion into
      a dwelling in order to remove an item of potential danger. The
      relevant inquiry is whether there was an objectively reasonable
      basis for believing that medical assistance was needed, or persons
      were in danger.

Gray, 211 A.3d at 1261.

      The suppression court addressed McNeill’s claims as follows:

           Applying [the exigency] factors to the case at hand, [the
      suppression court] conclude[s] that the entry by police into the

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     subject premises was proper. First, the crime at issue was one of
     violence. That is, the police were investigating a domestic
     disturbance after receiving a call from a neighbor. Second, the
     police received information from a little boy sitting on the porch
     that [Reid,] who had an active warrant[,] was inside. [Officer
     Auletta,] who has been an officer since 2009 and whose testimony
     [the court] found credible, testified that he feared that someone
     inside could be armed. As the officer approached the residence,
     the lights were on, the front door was open, and he could hear
     yelling and screaming. This is sufficient probable cause to believe
     that a domestic dispute was ongoing or in progress and possibly
     someone [was] in danger. Additionally, as there was someone in
     the house already with an active warrant, the probability of him
     escaping if not swiftly apprehended [was] high. It was reasonable
     for police to believe that someone who has an active warrant and
     wanted on aggravated assault charges would try to flee the scene.
     Next, Officer Auletta testified that the front door was open, the
     lights were on, and that he followed the little boy on the front
     porch inside the home. Moreover, Officer Auletta testified that
     they were able to search the residence without incident. The fact
     that the entry was not forcible aids in showing the reasonableness
     of police attitude and conduct.

           Applying the seventh factor, … the entry was made during
     the early morning hours. Although it was dark outside when the
     entry was made, the police responded immediately to the call for
     domestic violence and indicated that the lights were on when they
     approached the house. With regard to the other factors, [the
     suppression court] note[s] that Officer Auletta testified that he
     was concerned that someone was armed and thus feared for the
     safety [of] others (including a small boy [who] was sitting on the
     porch …). If the police had to wait for a warrant to enter the
     residence, there was a high possibility that the suspect (or suspect
     at the time) would escape or that he would [h]arm an individual
     inside the residence. As such, based on all of the aforementioned,
     [the court] find[s] that exigent circumstances existed to permit
     the police to enter the residence.

Order, 11/8/18, at 3-4 (quotation marks, citation, brackets, and footnote

omitted).




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      Our review confirms that the record supports the suppression court’s

factual findings. At the suppression hearing, Officer Auletta testified that he

was on duty on December 23, 2017, in full uniform, when he received a call

from a third party regarding a domestic violence incident at McNeill’s

residence. N.T. (Suppression), 10/9/18, at 4-5. According to Officer Auletta,

the caller explained that one of McNeill’s children called her to say that McNeill

was fighting with Reid, and the child was “worried so she wanted the police to

go make sure everything was okay.” Id. at 5.

      Officer Auletta testified that he found Reid’s name, which he recognized,

connected with McNeill’s, and noticed that Reid was wanted for an aggravated

assault that he previously had committed against McNeill. Id. at 5-6. Officer

Auletta stated that there was an active felony arrest warrant for Reid, and that

the address listed on the arrest warrant was the same address at which the

reported domestic incident was occurring. Id. at 6; see also id. (wherein

Officer Auletta indicated that the same address also appeared on Reid’s

driver’s license). Officer Auletta then called for two additional officers to assist

him. Id.

      Officer Auletta testified that as he and the other officers approached the

residence at approximately 12:30 a.m., they could hear multiple individuals

screaming from inside the home. Id. at 7, 17. The officers also noticed that

the door was open, and there were two children sitting on the front porch. Id.

at 7; see also id. at 8 (wherein Officer Auletta stated that the door was fully

ajar, and he could see people in the kitchen arguing). When Officer Auletta

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asked the children if Reid was inside the home, the older of the two indicated

that he was not, but the younger child stated that Reid was inside, and told

Officer Auletta to follow him. Id. at 8, 9, 19; see also id. at 19 (wherein

Officer Auletta estimated that the younger boy was about 4 or 5 years old).

Officer Auletta testified that he followed the younger boy inside the home, and

announced his presence multiple times without receiving a response. Id. at

9, 19.

         Officer Auletta proceeded into the residence and recognized McNeill,

who was arguing with two younger females. Id. According to Officer Auletta,

McNeill’s eyes were red and watery, and he could smell alcohol. Id. at 10.

Officer Auletta testified that he asked McNeill what was going on, and she told

him to get out of her house. Id. at 9-10. Officer Auletta stated that he had

asked McNeill several times whether Reid was in the house, and she replied

that he was not there. Id. at 10-11. According to Officer Auletta, the younger

child told one of the other officers that Reid was upstairs. Id. at 11.

         Additionally, Officer Auletta explained to McNeill that he had information

that Reid had an active arrest warrant, which listed the address of her

residence; they had been called to her residence and could hear yelling; and

the officers would complete a “body check” for Reid for safety. Id. at 8, 9-

11; see also id. at 24-25 (wherein Officer Auletta stated that he did not know

for sure whether Reid was armed, but because the arrest warrant was for a

felony aggravated assault, the officers “took it that he could be armed”), 25

(explaining, “we treat everybody as armed until we search and make sure

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they are not armed.”). After the officers searched the open areas of the first

floor, one of the officers stated that he could hear someone upstairs. Id. at

12.   The officers found Reid in an upstairs bedroom drinking a beer, and

arrested him without incident. Id.

      Importantly, McNeill does not contest the police officers’ authority to

enter her home. Brief for Appellant at 20; N.T. (Suppression), 10/9/18, at

29. McNeill similarly concedes that domestic violence is considered a high-

gravity offense, and that the police had probable cause to believe that Reid

was inside the residence. N.T. (Suppression), 10/9/18, at 29.

      Given the totality of the circumstances, we conclude that the

suppression court did not err in finding that exigent circumstances supported

the warrantless search.    The police received a call regarding a domestic

violence situation involving McNeill, which was still ongoing when the officers

arrived; the police received the call after midnight; the police were informed

that Reid was inside of the residence; Reid had an active arrest warrant for a

previous crime of violence committed against McNeill; there were other

individuals inside the home at the time, including young children; and the call

for assistance was initiated after a child in the home had alerted a neighbor

to the situation and asked for help because she was concerned. See Gray,

211 A.3d at 1261 (explaining the exigency that may arise from domestic

violence incidents); Richter, 971 A.2d at 1185 (stating that a warrantless

entry made in response to a 911 call concerning a domestic dispute was

supported by exigent circumstances, and specifically indicating that “the fact

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it was dark[] underscores the delay (and perhaps the impracticability of)

obtaining a warrant, and hence serve[s] to justify proceeding without one.”

(citation   marks   and   quotation   omitted)).   Additionally,   under   these

circumstances, it was reasonable for the police officers to believe that McNeill

and the children could be in danger, and that there was a risk that Reid would

flee the scene if they waited for a search warrant. Thus, we cannot grant

McNeill relief on her claims.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/07/2020




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