J-A11036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

BERNARD J. TERRELL

                             Appellant                 No. 236 EDA 2015


            Appeal from the Judgment of Sentence January 12, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0011246-2014

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 21, 2016

        Appellant, Bernard J. Terrell, appeals from the judgment of sentence

imposed in the Philadelphia County Court of Common Pleas following his

convictions for carrying a firearm on public streets or property in

Philadelphia.1    Appellant argues that the trial court erred by failing to

suppress evidence and by admitting evidence in contravention of the corpus

delicti rule. We affirm.

        The trial court summarized the underlying facts as follows:

              On January 12, 2015, Officer Ronald Kwiatkowski, a
           probation and parole officer with the Juvenile Division,
           YVRP (Youth Violence Reductionship Program), Juvenile
           Warrant, credibly testified that on August 8, 2014 at
           around 7:45 a.m. he was working with the Juvenile
           Warrant Division at 1646 West Nedro Avenue, 3rd Floor, in

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6108.
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       Philadelphia, Pennsylvania.    Officer Kwiatkowski stated
       that he has been with the Juvenile Warrant Department,
       specifically the YVRP for eight (8) years.            Officer
       Kwiatkowski stated that he was looking for Nyree Terrell
       [Appellant’s brother] on the morning in question . . . .

           Officer Kwiatkowski stated that when his team
       approached the front door of the apartment it knocked and
       announced. The Officer stated that at that time the team
       received a radio [c]all from police covering the side of the
       building notifying them that someone was trying to come
       out via the fire escape. The team continued to knock and
       announce at the front door, until it was opened by
       [Appellant’s] father. Officer Kwiatkowski stated two (2)
       officers entered before him and proceeded towards the
       kitchen area. These officers apprehended [Appellant] in
       the kitchen, where the fire escape is located. He stated
       that he started to clear the house for officer safety and
       search with the rest of the team.

          Officer Kwiatkowski testified that he entered the
       hallway and then the first bedroom on the left to look for
       Nyree Terrell. The door was not locked. He began to clear
       the bedroom looking for Nyree Terrell, searching
       “anywhere a body can be hiding.” This included looking
       under the bed, at which time Officer Kwiatkowski observed
       a handgun. He immediately saw what looked like a steel
       pipe that resembled a baton at that time. Upon further
       investigation, the officer went to the side of the bed and
       saw the firearm on the other side of the baton. Officer
       Kwiatkowski notified his supervisor and the police at the
       scene, who then came to the bedroom and recovered the
       gun.

          Officer Kwiatkowski was then directed to go in the living
       room and guard [Appellant] to make sure that he was
       secured while the other officers completed the search of
       the premises. Shortly after the gun was recovered, Nyree
       Terrell was located.     Officer Kwiatkowski testified that
       while he was in the living room [Appellant’s] father was
       notified of the gun found under the bed, and turned to
       [Appellant]   and     disappointedly    asked,   “A    gun?”
       [Appellant] replied facing his father, “It’s mine. I found it
       about a week ago in a red Camaro.” Officer Kwiatkowski


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       stated that he did not ask [Appellant] any questions while
       in the living room nor did any other officers present with
       him.

                                    * * *

          On cross-examination, Officer Kwiatkowski affirmed that
       he was on a warrant sweep, going from residence to
       residence collecting individuals who are wanted on active
       warrants. . . . Officer Kwiatkowski stated that the warrant
       issued for Nyree Terrell was for failing to appear. He also
       stated that he had no information on [Appellant], and no
       information that either posed any safety threat.        He
       explained that prior to executing the warrant, he reviews
       pictures and was aware of what Nyree Terrell looked like to
       an extent. Officer Kwiatkowski explained that when he
       enters a house, all persons are secured inside until they
       can be positively identified.

          Officer Kwiatkowski testified that when he opened the
       door to the bedroom he did not see an outline of a person
       under the bed and when he actually looked under the bed,
       no one was there. He reiterated that he first saw a steel
       pipe under the bed and that when he moved the bed away
       from the wall to identify the object, he saw the gun
       between the pipe and the wall. Officer Kwiatkowski stated
       that there were two young children, aged seven (7) to nine
       (9), who did not pose a safety threat as they were on top
       of the bed. Once the gun was found, he instructed a
       female officer that was in the hallway to take the two
       children into the living room to sit with the father. Officer
       Kwiatkowski stated that as he searched the bed he
       received information that Nyree Terrell had been found at
       the back of the house in the hallway.

          Officer Kwiatkowski testified that he did not see a
       wallet, license or anything else that initially identified the
       ownership of the gun. He stated that before finding the
       gun, he saw that [Appellant] was handcuffed after he was
       found trying to exit the kitchen onto the fire escape.
       Officer Kwiatkowski explained that [Appellant] was seated
       in a chair in the living room across from his father, who
       was seated next to the two little children.             Officer
       Kwiatkowski’s supervisor notified [Appellant’s] father that


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           a weapon was found. The gun was in a bag when officers
           showed it to [Appellant]. Officer Kwiatkowski stated that
           police were not standing over [Appellant] and that
           [Appellant] was not read his Miranda rights prior to his
           statement.

              Evidence was introduced at trial by way of stipulation by
           and between counsel that the firearm found in the
           bedroom by Officer Kwiatkowski was recovered by Officer
           Rockemore and Officer Bruhns and that [Appellant] was
           not licensed to carry a firearm. That firearm was an
           operable Firestar 40 caliber gun loaded with five (5)
           rounds and was placed on [a] property receipt.

Trial Ct. Op., 4/27/15, at 2-6 (citations omitted).

        Appellant was initially charged with carrying a firearm without a

license,2 carrying a firearm on public streets or property in Philadelphia, 3 and

possession of a controlled substance.4 On January 8, 2015, Appellant filed a

motion to quash, and on December 12, 2014, Appellant filed a motion to

suppress physical evidence, including the firearm here at issue. On January

15, 2015, the trial court conducted a suppression hearing followed by a

stipulated non-jury trial. The court denied Appellant’s motion to quash and

motion to suppress. The court found Appellant guilty of carrying a firearm

on public streets or property in Philadelphia, and sentenced him to time

served to twelve months’ incarceration followed by forty-eight months’


2
    18 Pa.C.S. § 6106.
3
    18 Pa.C.S. § 6108.
4
    35 P.S. § 780-113.




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reporting probation.      This timely appeal followed.   Appellant timely filed a

court-ordered Pa.R.A.P. 1925(b) statement and the trial court filed a

responsive Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issues for our review:

          1. Did not the lower court err in denying [A]ppellant’s
          motion to suppress evidence where the [A]ppellant was
          detained and evidence was subsequently seized without
          probable cause or a search warrant or an exception to the
          warrant requirement; specifically, after [Appellant] had
          already been detained, a warrant officer, while conducting
          a protective sweep of [Appellant’s] residence pursuant to
          the effectuation of a warrant to arrest another resident of
          the home, exceeded the scope of the permissible search by
          moving a bed, thus uncovering a firearm, after the officer
          ascertained that there was no person hiding under the bed
          and before the officer saw any item whose nature as a
          weapon or contraband was apparent to the officer?

          2. Did not lower court err in failing to quash the indictment
          and in permitting [Appellant’s] statement (that he
          possessed a firearm found at the location) to be introduced
          in evidence against him at trial without the Commonwealth
          first establishing the corpus [delicti] of a crime through
          evidence independent of the statement?

Appellant’s Brief at 4.

      In his first issue, Appellant argues that the trial court erred by failing

to suppress evidence of the gun because Officer Kwiatkowski exceeded the

scoop of a search permitted pursuant to a “protective sweep” incident to an

arrest.   Specifically, Appellant avers that Officer Kwiatkowski effectively

conducted an impermissible search when he “moved a bed” in order to

recover the gun. Appellant contends that because the bed was moved, the

gun was not subject to the “plain view” exception to the warrant


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requirement.   Further, he asserts that the metal pipe initially detected by

Officer Kwiatkowski did not constitute evidence of a weapon or contraband in

need of further investigation. We disagree.

      When considering the trial court’s denial of a motion to suppress, this

Court employs the following standard of review:

         [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 the courts below are
         subject to [ ] plenary review.

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

(citation omitted).

      “A warrantless search or seizure is presumptively unreasonable under

the Fourth Amendment and Article I, § 8, subject to a few specifically

established, well-delineated exceptions.” Commonwealth v. McCree, 924

A.2d 621, 627 (Pa. 2007). A “protective sweep” is one such exception:

         [i]t is well settled that “[u]nder emergent circumstances,
         protective sweeps are a well-recognized exception to the


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       warrant requirement.” Commonwealth v. Witman, 2000
       PA Super 92, 750 A.2d 327, 335 (Pa. Super. 2000), appeal
       denied 564 Pa. 138, 764 A.2d 1053 (Pa. 2000), cert.
       denied, 534 U.S. 815, 122 S. Ct. 42, 151 L. Ed. 2d 15
       (2001).

       A protective sweep is “a quick and limited search of
       premises, incident to an arrest and conducted to protect
       the safety of police officers or others.” Maryland v. Buie,
       494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 27
       (1990). Buie sets forth two levels of protective sweeps. Id.
       at 334, 110 S. Ct. 1093. The two levels are defined thus:

          [A]s an incident to the arrest the officers could, as a
          precautionary matter and without probable cause or
          reasonable suspicion, look in closets and other
          spaces immediately adjoining the place of arrest
          from which an attack could be immediately launched.
          Beyond that, however, we hold that there must be
          articulable facts which, taken together with the
          rational inferences from those facts, would warrant a
          reasonably prudent officer in believing that the area
          to be swept harbors an individual posing a danger to
          those on the arrest scene.

       Id. Pursuant to the first level of a protective sweep,
       without a showing of even reasonable suspicion, police
       officers may make cursory visual inspections of spaces
       immediately adjacent to the arrest scene, which could
       conceal an assailant. The scope of the second level permits
       a search for attackers further away from the place of
       arrest, provided that the officer who conducted the sweep
       can articulate specific facts to justify a reasonable fear for
       the safety of himself and others.

       Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261,
       1267 (Pa. 2001), cert. denied, 534 U.S. 994, 122 S. Ct.
       462, 151 L. Ed. 2d 380 (2001).

Commonwealth v. Potts, 73 A.3d 1275, 1281–82 (Pa. Super. 2013).

     A properly conducted sweep is for persons:




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J-A11036-16


           It cannot be used as a pretext for an evidentiary search.
           It cannot be lengthy or unduly disruptive. It must be swift
           and target only those areas where a person could
           reasonably be expected to hide.

Commonwealth v. Crouse, 729 A.2d 588, 598 (Pa. Super. 1999).

      In addition, “[t]he ‘plain view’ doctrine is often considered an

exception to the general rule that warrantless searches are presumptively

unreasonable . . . .”       McCree, 924 A.2d at 627 (quoting Horton v.

California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2306, 110 L. Ed. 2d 112

(1990)).

      We note the following legal precepts regarding the plain view doctrine:

           The plain view doctrine permits the warrantless seizure of
           evidence in plain view when: (1) an officer views the
           object from a lawful vantage point; and (2) it is
           ‘immediately apparent’ to him that the object is
           incriminating.

           In determining ‘whether the incriminating nature of an
           object is immediately apparent to the police officer,’ we
           look to the totality of the circumstances.’ An officer can
           never be one hundred percent certain that a substance in
           plain view is incriminating, but his belief must be
           supported by probable cause.

Commonwealth v. Johnson, 921 A.2d 1221, 1223 (Pa. Super. 2007)

(citations omitted).

      When reviewing whether an object’s criminal nature is “immediately

apparent,” we note that probable cause

           merely requires that the facts available to the officer would
           warrant a man of reasonable caution in the belief, that
           certain items may be contraband or stolen property or
           useful as evidence of a crime; it does not demand any


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        showing that such a belief be correct or more likely true
        than false.    A practical, non-technical probability that
        incriminating evidence is involved is all that is required.

Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super. 1995)

(citations, emphasis, and internal quotation marks omitted) (emphasis

omitted).

     In the case sub judice, we conclude that the trial court properly

determined that the gun in question was discovered pursuant to the plain

view exception to the warrant requirement during a permissible protective

sweep   incident   to   the   arrest   of   Appellant’s   brother,   Nyree   Terrell.

Specifically, officers arrived at Appellant’s residence pursuant to a valid

search warrant on Appellant’s brother for failing to appear in juvenile court.

Trial Ct. Op. at 9.     Accordingly, Officer Kwiatkowski, for purposes of the

officer’s own safely and protection under the protective sweep doctrine,

properly searched under a bed to see if Nyree Terrell was present there.

See Potts, 73 A.3d at 1281-82; Crouse, 729 A.2d at 598.

     However, instead of the fugitive, Officer Kwiatkowski saw an object

that caught his immediate attention. The object appeared to be metal and

baton-like but in order to be sure it was not a weapon or contraband, the

officer moved the bed slightly, at which time he was able to plainly observe

the gun in question.     We hold that a ‘practical non-technical’ view of the

facts available to Officer Kwiatkowski, including the object’s placement in a

corner under the bed and the valid warrant on Appellant’s brother, supports



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the conclusion that a person of reasonable caution would have probable

cause to believe that the object initially viewed under the bed could

constitute a weapon or contraband.         See Johnson, 921 A.2d at 1223;

McEnany,     667   A.2d   at   1148.     Thus,   Officer   Kwiatkowski’s   further

investigation of the object was lawful and led to the discovery of the gun in

plain view. Accordingly, we hold that Officer Kwiatkowski properly seized the

gun pursuant to the plain view doctrine because (1) he lawfully engaged in a

search under the subject bed pursuant to the protective sweep doctrine

incident to a valid warrant for Appellant’s brother’s arrest and (2) he had

probable cause, under the totality of the circumstances, to believe that the

object he observed under the bed was evidence of criminal activity.          See

Johnson, 921 A.2d at 1223; McEnany, 667 A.2d at 1148. Therefore, we

conclude that the trial court did not err by declining to suppress the gun and

Appellant’s first issue lacks merit.

       Turning to his second issue, Appellant contends that the trial court

erred by admitting Appellant’s incriminatory statement in violation of the

corpus delicti rule.    Appellant argues that the Commonwealth failed to

present sufficient evidence of the commission of a crime, prior to the

admission of Appellant’s statement confessing to illegal possession of the

gun.     Specifically, Appellant avers that the evidence presented was

insufficient to prove, either by a preponderance of the evidence or beyond a




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reasonable doubt, that he had carried a firearm on a public street or

property in Philadelphia, absent his statement. We do not agree.

      As a prefatory matter, we note our standard of review:

           [t]he corpus delicti rule is an evidentiary one. On a
           challenge to a trial court’s evidentiary ruling, our standard
           of review is one of deference.

           The admissibility of evidence is solely within the discretion
           of the trial court and will be reversed only if the trial court
           has abused its discretion. An abuse of discretion is not
           merely an error of judgment, but is rather the overriding
           or misapplication of the law, or the exercise of judgment
           that is manifestly unreasonable, or the result of bias,
           prejudice, ill-will or partiality, as shown by the evidence of
           record.

Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super. 2012)

(citations omitted).

      “The corpus [delicti] rule places the burden on the prosecution to

establish that a crime has actually occurred before a confession or admission

of   the   accused     connecting   him   to    the   crime   can   be   admitted.”

Commonwealth v. Dupre, 866 A.2d 1089, 1097 (Pa. Super. 2005)

(citations omitted).     However, “[t]he Commonwealth need not prove the

existence of a crime beyond a reasonable doubt as an element in

establishing the corpus delicti of a crime, but the evidence must be more

consistent with a crime than with accident.” Id. at 1098 (citation omitted).

In addition, it is well settled that the corpus delicti may be proven by

circumstantial evidence.     Commonwealth v. Hogans, 584 A.2d 347, 349

(Pa. Super. 1990). Further, we note:


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            Establishing the corpus delicti in Pennsylvania is a two-step
            process. The first step concerns the trial judge’s admission
            of the accused’s statements and the second step concerns
            the fact finder’s consideration of those statements. In
            order    for   the   statement     to   be   admitted,    the
            Commonwealth must prove the corpus delicti by a
            preponderance of the evidence. In order for the statement
            to be considered by the fact finder, the Commonwealth
            must establish the corpus delicti beyond a reasonable
            doubt.

Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006).

      In this case, we conclude that the trial court was well within its

purview when finding that ample evidence supported the admission and

consideration of Appellant’s incriminating statement under the corpus delicti

rule, under both a preponderance of the evidence standard and a beyond a

reasonable doubt standard, where the evidence presented was consistent

with criminal activity and not mistake.         See Young, 904 A.2d at 956.

Dupre, 866 A.2d at 1097. As aptly noted by the court, the Commonwealth

established that Officer Kwiatkowski discovered a loaded gun, situated in a

corner under a bed at Appellant’s residence, in the presence of young

children.    Appellant was not licensed to carry a gun.      Further, the officers

found Appellant adjacent to the fire escape, moments after a radio call

indicating that someone had been seen trying to exit via the fire escape.

Accordingly, we conclude that the trial court did not abuse its discretion by

admitting Appellant’s incriminating statement in light of the significant

circumstantial evidence presented to establish the requisite corpus delicti.




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See Hogans, 584 A.2d at 349.        Therefore, Appellant’s second issue on

appeal must also fail and we affirm his judgment of sentence.

     Judgment of sentence affirmed.

     Judge Mundy joins this Memorandum.

     Judge Shogan files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2016




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