J-S56009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS VEGA-DIAZ

                            Appellant                No. 2075 MDA 2013


           Appeal from the Judgment of Sentence November 8, 2013
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000281-2012


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 07, 2014

        Appellant, Luis Vega-Diaz, appeals from the judgment of sentence

entered November 8, 2013, by the Honorable Thomas G. Parisi, Court of

Common Pleas of Berks County. Vega-Diaz argues that the trial court erred

when it denied his pre-trial motion to suppress evidence. We disagree and

affirm.

        The trial court summarized the facts adduced at the pre-trial

suppression hearing as follows.

              On January 2, 2012, Criminal Investigator John Lackner of
        the [City of Reading Police Department,] Vice Division[,]
        prepared a search warrant for 1020 Weiser Street in the City of
        Reading, Berks County, as well as a Ford Focus HWF-2813, and
        the body of Appellant, Luis Vega-Diaz. The warrant was signed
        by Magisterial District Judge Kim Bagenstose and executed by
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Officer Lackner and other members of the Reading Police Vice
     Division on January 3, 2012.

          At approximately 9:30 a.m. on January 3, 2012, officers
     observed Appellant exit 1020 Weiser Street and leave the area in
     the Ford Focus that was also subject of the search warrant.

     Carrasquillo stopped Appellant in the Focus and placed him into
     custody subject to the warrant. Officer Lackner testified that
     once the officers assigned to the entry were notified that the
     vehicle was stopped and the Appellant was in custody, the
     officers approached 1020 Weiser Street to make entry.

          After   repeated   knocks   and    an   announcement,
     approximately one minute had passed. At this point, Officer
     Lackner requested that Detective Matt Niebel break the door
     down with a battering ram. Detective Niebel then announced
                                                r. Once the door

     and entered through the front door. Ms. Tonya Rice was found
     on the second floor in the area of the bedroom in the hallway as
     the officers searched the residence for people in order to secure
     the residence and execute the search warrant. Ms. Rice was
     then handcuffed. Meanwhile, Appellant and the Ford Focus were

     Officer Lackner testified that, as Appellant did not speak English,

     explanation of the search warrant and Miranda rights to the
     Appellant from English to Spanish. Officer Lackner explained to
     Appellant that there was a search warrant for his house at 1020
     Weiser, the two vehicles and his person. Appellant than agreed
     to speak to Officer Lackner without an attorney. Appellant,
     through Officer Carrasquillo, told Officer Lackner that he had
     some heroin packets on his person and that additional heroin
     was located in the residence. Appellant took Officer Lackner
     through the house and showed him where the heroin could be
     located. Appellant indicated to Officer Lackner that he was a
     drug user. Appellant told Officer Lackner that there was an
     additional quantity of heroin in the basement, which was in a
     black trunk. Officer Lackner then asked Appellant if he had a
     key to the lock. Appellant said that the key to the trunk was on
     the key ring that he had on his person.

           A large quantity of heroin was found inside the locked


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       key ring that opened the front door of 1020 Weiser Street. Upon
       further search of the residence, a firearm was seized from the
       second floor front bedroom where it was found standing upright
       behind the bedroom door. Empty unused packaging material
       was also found inside the residence. Additionally, 50 packets of
       heroin that were bundled in packages were found on the


Trial Court Opinion, 2/10/14 at 3-4.

       Vega-Diaz chose to proceed pro se, with the assistance of a translator,

during pre-

Office acted as standby counsel. Vega-Diaz filed a pre-trial motion to

suppress evidence, which the trial court denied by order dated on April 30,

2013, following several hearings on the matter. A jury ultimately convicted

Vega-Diaz was convicted of Possession with Intent to Deliver a Controlled

Substance,1 Persons Not to Possess Firearms,2 and Possession of Drug

Paraphernalia.3 On November 8, 2013, the trial court sentenced Vega-Diaz



probation. This timely appeal followed.4

       On appeal, Vega-Diaz raises the following issue for our review.

                                                             -trial
       motions, where police officers executed a search warrant of

                                                        n   violation    of

____________________________________________


1
  35 P.S. § 780-113(a)(30).
2
  18 Pa.C.S.A. § 6105(a)(1).
3
  35 P.S. § 780-113(a)(32).
4
  On April 17, 2014, Counsel was appointed to represent Vega-Diaz on
appeal.



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      of the Constitution of the United States, and Article I, Section 8
      of the Constitution of the Commonwealth of Pennsylvania?




      Our standard when reviewing a

suppress evidence is well-settled.

      [W]e are limited to determining whether the factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. We may consider the
      evidence of the witnesses offered by the prosecution, as verdict
      winner, and only so much of the defense evidence that remains
      uncontradicted when read in the context of the record as a
      whole.

Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)

(citation omitted). Our scope of review in suppression matters is limited to

the evidentiary record presented at the pre-trial suppression hearing, and

does not include evidence elicited at trial.   See In re L.J., 79 A.3d 1073,

1084-1085 (Pa. 2013).

findings of the suppression court, this Court will reverse only if there is an

                                                            Commonwealth

v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010).




      (A) A law enforcement officer executing a search warrant shall,
      before entry, give, or make reasonable effort to give, notice of
      the offi
      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,

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      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.



warning, and to safeguard legitimate privacy expectations to the degree

           Commonwealth v. Kane, 940 A.2d 483, 489 (Pa. Super. 2007)

(citation omitted).



Commonwealth v. Walker, 874 A.2d 667, 671 (Pa. Super. 2005) (citation



                                                                          Id.

(citation omitted).

      Vega-Diaz argues that the police never announced before knocking

down the door and entering the residence. The suppression court rejected

this argument and determined that, based on the evidence presented at the

suppression hearing, police reasonably complied with the knock and

announce rule. We agree.

      At the suppression hearing, Officer Lackner testified that he knocked



Suppression Hearing, 8/16/12 at 27.       After waiting approximately one

minute, he requested Officer Niebel to force the door open.       Id. at 28.


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Officer Lackner testified that after he knocked a final time, Officer Neibel

                                                                   Id. at 30.



forcing the door to the residence open, and again after opening the door and

prior to entering. N.T., Suppression Hearing, 9/9/12 at 10. Officer Niebel

additionally testified that the police officers continued to announce their

presence and purpose as they entered and cleared the house. See id.

       Based on the foregoing testimony, we find that the police substantially

complied with the knock and announce rule. By announcing their presence

prior to, during, and after entering the residence at 1020 Weiser Street,

anyone located in the residence would have been fully aware of police

presence and purpose and would have had ample opportunity to peacefully

surrender.     We agree with the suppression court that the police acted

reasonably and that their conduct did not offend constitutional mandates.5

Accordingly, suppression was not warranted.

       Judgment of sentence affirmed. Jurisdiction relinquished.




____________________________________________


5
  The United States Supreme Court has held that the exclusionary rule is
inapplicable to Fourth Amendment knock and announce violations. See
Hudson v. Michigan, 547 U.S. 586, 594-595 (2006).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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