J-S35028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL

                            Appellant               No. 2041 MDA 2013


          Appeal from the Judgment of Sentence of October 16, 2013
              In the Court of Common Pleas of Lancaster County
              Criminal Division at No.: CP-36-CR-0000426-2013


BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                          FILED AUGUST 07, 2014



sentence. We affirm.

       The trial court summarized the relevant factual and procedural history

of this case, as follows:

       On November 1, 2012, [two police officers] were dispatched to

       the officers arrived, they could hear male and female voices
       yelling inside the apartment. Upon knocking on the door, the


       and finally, [McKinney] opened the door and refused to permit
       entry to the officers. The officers wanted to check on the
       welfare of the female [that] they had heard inside, but
       [McKinney] refused to move or allow entry.


____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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      Finally, the officers physically removed [McKinney] from the door
      and restrained him so that they could enter. [McKinney] fought
                                           him and screamed at police
      until other occupants of the apartment building came out of their
      apartments to see the commotion. Upon entering the apartment
      to check the welfare of the female and to determine if anyone
      else was present, [a police officer] located two baggies of


      [McKinney] was charged with disorderly conduct1 and
      possession[ ]small amount of marijuana.2 On June 19, 2013,
      [McKinney] filed a motion to suppress evidence and a
      suppression hearing was held on October 15, 2013.      The

      findings that the totality of the circumstances justified the police

      apartment to ensure that the female . . . was not in danger or in
      immediate need of aid and that the police were not required to
      ignore marijuana that they see in the living room while
      conducting a legal sweep of the apartment. A jury trial followed
      the suppression hearing. The jury found [McKinney] guilty of
      the disorderly conduct [charge] and the judge found [McKinney]
      guilty of the possession[ ]small amount of marijuana [charge].
      [On October 16, 2013, McKinney] was sentenced to [one] year
      of probation for the disorderly conduct [conviction] and thirty
      days of probation for the [marijuana possession conviction], with
      the sentences to run concurrently.
            1
                  18 Pa.C.S. § 5503(a)(2).
            2
                  35 P.S. § 780-113(a)(31).

                                                      -2 (citations omitted or

modified, minor modifications to capitalization).

      On November 15, 2013, McKinney filed a timely notice of appeal. On

November 19, 2013, the trial court ordered McKinney to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On December 9, 2013, McKinney timely filed his Rule 1925(b) statement




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statement. On December 20, 2013, the trial court filed an opinion pursuant

to Pa.R.A.P. 1925(a).

      McKinney presents two issues for our review:

      (1)
      motion, where no exigent circumstances supported a protective
      sweep of the entire apartment when both parties to the domestic
      dispute were located, questioned, and secured in the entrance
      hallway to the apartment?

      (2) Was the evidence presented by the Commonwealth
      insufficient to prove beyond a reasonable doubt that [McKinney]
      was in constructive possession of the marijuana found in the
      living room of his apartment?

Brief for McKinney at 5.

      In his first issue, McKinney alleges that the trial court erred in denying



during a protective sweep which was not conducted incident to the arrest of




taken together with the rational inferences from those facts, would warrant a

reasonably prudent officer in believing that the area to be swept harbor[ed]

                                                                  Id. (quoting

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

      Our s

motion is well-settled:




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     [I]n addressing a challenge to a trial court's denial of a
     suppression motion [we are] limited to determining whether the
     factual findings are supported by the record and whether the
     legal conclusions drawn from those facts are correct. Since the
     [Commonwealth] prevailed in 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 record
     supports the factual findings of the trial court, we are bound by
     those facts and may reverse only if the legal conclusions drawn
     therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010) (quoting

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003)).



                         Commonwealth v. White, 669 A.2d 896, 900

(Pa. 1995).   Absent the application of one of a few clearly delineated

exceptions, a warrantless search or seizure is presumptively unreasonable.

Id. (citing Horton v. California, 496 U.S. 128, 134 n.4 (1990)). This is the

law under both the Fourth Amendment to the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution.   Commonwealth v.

McCree, 924 A.2d 621, 627 (Pa. 2007).



apartment was constitutionally proper, we first must assess whether the



warrant. One such exception to our well-established warrant requirement is




     The exigent circumstances exception to the warrant requirement
     recognizes that some situations present a compelling need for


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J-S35028-14


      instant arrest, and that delay to seek a warrant will endanger
      life, limb[,] or overriding law enforcement interests. In these
      cases, our strong preference for use of a warrant must give way
      to an urgent need for immediate action.

                                 *    *     *

      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 a
      danger to police or other persons inside or outside the
      dwelling.

Commonwealth v. Richter, 791 A.2d 1181, 1184-85 (Pa. Super. 2002)



exist involves a balancing of

unreasonable intrusions against the interest of society in investigating crime

                           Commonwealth v. Hinkson, 461 A.2d 616, 618

                                                                            ding

                                      Id. (citing Commonwealth v. Harris,

239 A.2d 290, 292 (Pa. 1968)).



                                                            Potts, 73 A.3d at

1280 (citing Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 2009)).

Indeed, Pennsylvania courts specifically have singled out domestic disputes

as a situation that may give rise to exigency:

                                                             al for
      imminent physical harm in the domestic context implicate
      exigencies that may justify limited police intrusion into a

      Commonwealth v. Wright, 742 A.2d 661, 664 (Pa. 1999).
      The relevant inqui

                                     -5-
J-S35028-14


     reasonable basis for believing that medical assistance was
                                                Michigan v. Fisher, 558
     U.S. 45, 49 (2009) (citation and quotation marks omitted).
                                            must embody allowance for
     the fact that police officers are often forced to make split-second
     judgments in circumstances that are tense, uncertain, and
                          Ryburn v. Huff, 132 S.Ct. 987, 992 (2012)
     (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

Potts, 73 A.3d at 1280-81 (citations modified).

     In the instant case, the officers were responding to a domestic dispute



                                 -7. En route t

officers received a radio transmission advising that a stabbing had recently

occurred at the same address. Id. at 7-8. Upon arriving at the scene, the

officers heard screaming between a man and a woman emanating from

         s apartment.     Id. at 8-10.       Immediately after knocking on




Id. at 10-11. The officers described the loud thud as akin to the sound of a

head striking a wall. Id. Following the verbal outburst and loud thud, the

argument inside of the apartment suddenly ceased. Id. at 11.



                          the   officers   attempted   to   forcibly enter   the

apartment.    Id.   While both officers were issuing verbal commands for

McKinney to open the door, McKinney eventually complied.            Id. at 12.




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a

                                                 Id. at 12-13.    The officers

could not see past McKinney into the apartment.      Id. at 21.   One of the

officers further testified that

blocking the doorway] were stopping me from verifying injuries and aiding

                                                                          Id.

at 13. Ultimately, the officers physically restrained and removed McKinney



                                              Id. at 13.

      This recitation of events indicates that the police were responding to

an exigency created by their first-hand observations, which led them to

believe that a woman inside of the dwelling had been injured during a

domestic dispute.   The police were on-hand to hear the dispute occurring

behind closed doors, and were able separately to identify the voices of

McKinney and his putative paramour. Immediately after attempting to gain




of the apartment went silent. Even after opening the door, McKinney sought

to prevent the police officers from entering, which precluded the officers

from determining whether anyone actually had been injured.

      Reviewing the totality of these circumstances, the police were justified




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an act of domestic violence had occurred. Specifically, these observations



                                                               Potts, Galvin,

supra. These exigent circumstances allowed the officers to t




without a warrant. Wright, supra.



apartment was permitted pursuant to exigent circumstances, we turn to the



uncovered narcotics.

      Under emergent circumstances, protective sweeps are a well-
      recognized exception to the warrant requirement.               In
      Commonwealth v. Crouse, 729 A.2d 588 (Pa. Super. 1999),
      this Court held that properly conducted protective sweeps violate
      neither the Fourth Amendment [to] the United States
      Constitution nor Article I, Section 8 of the Pennsylvania
      Constitution.

Commonwealth v. Witman, 750 A.2d 327, 335-36 (Pa. Super. 2000)



premises, incident to an arrest and conducted to protect the safety of police

officers or            Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa.

2001) (quoting Maryland v. Buie, 494 U.S. 325, 327 (1990)).

      Buie sets forth two levels of protective sweeps. Buie, 494 U.S.
      at 334. The two levels are defined thus:




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         [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 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.

Taylor, 771 A.2d at 1267 (citations modified).

     Instantly, there is no allegation that the officers were present at



McKinney was not under arrest when the police initially entered and

invest



                              Taylor, supra.

     Potts is highly instructive in this context.   In Potts, police officers,

responding to a domestic dispute, heard screaming and yelling emanating



apartment door for approximately twenty seconds before the yelling and

screaming stopped. When no one answered the door, the officers drew their

weapons.      Finally, the victim in Potts opened the door, appearing

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                                  Id.

                     Id. One of the officers then saw the appellant run into a

bedroom and shut the bedroom door. When asked to identify the man who

had just run into the bedroom, the victim identified the appellant as her

boyfriend.   The officers asked the appellant to come out of the bedroom.

Id. The appellan

                            Id. At this point, the officers became concerned

for their own safety, as well as for the safety of the victim. Id. at 1279.

                                              the officers entered the bedroom

to perform a protective sweep in order to check for other people or weapons

that might pose a threat to the victim or to officers. Id. Upon entry into the

bedroom, the officer discovered, and eventually seized, an open suitcase

filled with a large amount of marijuana. Id. The appellant filed a motion to

suppress the evidence obtained as the fruits of an allegedly illegal protective

sweep, which the trial court subsequently denied after a hearing. Id. On

appeal, this Court concluded that the totality of the circumstances justified




danger. Id.                                        argument that, because the

appellant had not yet been arrested the officers were not permitted to



                                                          Id. at 1282 (quoting

Michigan v. Long, 463 U.S. 1032, 1049-50 (1983)).              Specifically, we

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quoted the United States Supreme Court in Long

while conducting a [protective sweep], the officer should, as here, discover

contraband other than weapons, he clearly cannot be required to ignore the

                 Id. Thus, in Potts



                             Id. at 1281-82.

       Here, the record contains ample articulable facts which, when taken

together with the rational inferences drawn from those facts, would justify

                                                        Potts, 73 A.3d at 1282

(citation omitted). Specifically, the exigent circumstances that justified the



protective sweep. See supra at 6-8. The fact that McKinney had not yet

been arrested at the time of the protective sweep is immaterial.        Potts,

Long, supra.      Furthermore, the investigating officers were not required to



conducting the sweep.          Id.; see N.T. Suppression at 25-27 (identifying

where the police officers initially saw the narcotics).       Based upon the



                                     1
                                         Id.
____________________________________________


1



plain view doctrine is an exception to the warrant requirement. Horton,
496 U.S. at 133. The plain view doctrine permits the warrantless seizure of
(Footnote Continued Next Page)


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      In his second issue, McKinney alleges that there was insufficient

evidence for the trial court to conclude that McKinney was in constructive

possession of the marijuana for which he was subsequently charged and

convicted. Brief for McKinney at 12.

      When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as the

verdict winner, giving the Commonwealth the benefit of all reasonable

inferences to be drawn from the evidence.           Commonwealth v. Duncan,



deemed sufficient to support the verdict when it establishes each material

element of the crime charged and the commission thereof by the accused,

                                     Id. (quoting Commonwealth v. Brewer, 876

A.2d 1029, 1032 (Pa. Super. 2005), appeal denied, 887 A.2d 1239 (Pa.

2005)). Moreover, this Court may not substitute its judgment for that of the
                       _______________________
(Footnote Continued)

an object when: (1) an officer views the object from a lawful vantage point;
(2) it is immediately apparent to the officer that the object is incriminating;
and (3) the officer has a lawful right of access to the object.
Commonwealth v. Brown, 23 A.3d 544, 552 (Pa. Super. 2011) (citing
Horton, 496 U.S. at 136-37). In the instant case and as noted above, the
police officers had a lawful right of access to the M
to exigent circumstances. See supra at 8. Upon performing a protective
sweep and without having to open any doors, the officers noticed two

which contained what the officers immediately suspected to be marijuana.
N.T. Suppression at 25-27. The record reflects that the officers viewed the
evidence from a lawful vantage point and that its incriminating nature was
immediately apparent. See Brown, 23 A.3d at 552.




                                           - 12 -
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factfinder, and where the record contains support for the convictions, they

may not be disturbed. Id. Lastly, the finder of fact is free to believe some,

all, or none of the evidence presented.      Commonwealth v. Hartle, 894

A.2d 800, 804 (Pa. Super. 2006).

      A defendant is guilty of possession of a small amount of marijuana if

he possesses less than thirty grams of marijuana for personal use. 35 P.S.

§ 780-                                         unable to prove that a suspect

had a controlled substance on his person, the Commonwealth may show

                                             Commonwealth v. Davis, 480

A.2d 1035, 1045 (Pa. Super. 1984) (citation omitted).

      The existence of constructive possession of a controlled
      substance is demonstrated by the ability to exercise a conscious
      dominion over the illegal substance: the power to control the
      [illegal substance] and the intent to exercise that control. An
      intent to maintain a conscious dominion may be inferred from
      the totality of the circumstances. Thus, circumstantial evidence
      may be used to establish constructive possession of the illegal
      substance. Additionally, [the Pennsylvania Supreme Court] has
      recognized that constructive possession may be found in one or
      more actors where the item in issue is in an area of joint control
      and equal access.

Commonwealth v. Johnson, 26 A.3d 1078, 1093-94 (Pa. 2011) (citations



of the narcotics and intent to exercise control over such may be inferred

from access to such drugs and the other surrounding circumstances, even

                                                 Davis, 480 A.2d at 1045

(citation omitted).


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       Commonwealth v. Mudrick, 507 A.2d 1212 (Pa. 1986), is instructive

in the instant case.      In Mudrick, local police officers and narcotics agents



warrant on the girlfriend. Id. The appellee answered the door, and directed

                                               Id. Officers entered the bedroom and

placed the girlfriend under arrest.            Id.   The appellee told officers that he

                                                                                 Id. at

1212-13.     Officers then observed a box of marijuana on the living room

coffee table.    Id. at 1213.      After obtaining a search warrant, the officers

performed a search of the residence, which produced marijuana from the

living room coffee table as well as cocaine in the bedroom and study. Id.

The appellee was arrested, and subsequently convicted of various charges.
                                                                            2
                                                                                and the

Commonwealth appealed. Id. at 1212. Our Supreme Court reinstated the

judgment of

constructive possession may be found in either or both actors if contraband

                                                                   Id. at 1212, 1214.

Because the appellee and his girlfriend shared control and access of the




____________________________________________


2
       Commonwealth v. Mudrick, 508 A.2d 341 (Pa. Super. 1984) (table).



                                          - 14 -
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constructive possession of the marijuana openly accessible to him on the

                           Id. at 1214.

      In the instant case, the record reflects that the evidence presented by



possession of a small amount of marijuana. Upon entry into the apartment,

officers discovered two bags of marijuana in plain view on a living room

coffee table. N.T. Suppression at 25.     The record indicates that McKinney

lived at the residence where the drugs were found. Id. at 28. One of the

responding officers testified that McKinney conceded, both on the night in

question and in prior dealings, that he lived at the apartment in question.

Id.



        Id. at 10-11. When McKinney opened his door, he told the officers

                                                                 Id. at 12.



time of the incident. Id. at 28.

      McKinney testified that, although his girlfriend had her own apartment,

she had been living with McKinney in his apartment prior to and on the night

of the incident in question. Notes of Testimony                             -

16/2014, at 140-41.      Although McKinney disclaimed possession of the

marijuana, his denial offered no alternative explanation of ownership.



finding McKinney guilty pursuant to 35 P.S. § 780-113(a)(31), the jury

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J-S35028-14



clearly chose to disbelieve McKinney. Precedent forbids us from disturbing

such credibility determinations in the context of sufficiency of the evidence.

       Based upon the foregoing, there was sufficient evidence to allow the

jury to conclude that McKinney was in constructive possession of the

marijuana in his living room.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2014




____________________________________________


3
     McKinney has offered no alternative explanation for the presence of
the marijuana in his apartment. However, McKinney does suggest that his

Assuming, arguendo, that McKinney and his paramour had equal access to
the living room, either party could have been considered in constructive
possession of the marijuana. Mudrick, 507 A.2d at 1212-14.



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