J-S38023-15


                                   2015 PA Super 206



COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

HYSON E. FREDERICK

                            Appellant                         No. 1103 MDA 2014


      Appeal from the Judgment of Sentence entered February 4, 2014
             In the Court of Common Pleas of Lycoming County
          Criminal Division at Nos: CP-41-CR-0000355-2012 and
                          CP-41-CR-0001445-2012


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                                  FILED SEPTEMBER 25, 2015

       Appellant Hyson E. Frederick1 appeals from the February 4, 2014

judgment of sentence entered in the Court of Common Pleas of Lycoming

County (“trial court”), after the jury convicted Appellant of multiple robbery,

burglary, and other offenses. Upon review, we vacate and remand.

       The    facts   and    procedural        history   underlying   this   appeal   are

uncontested.2 Detective Curtis Loudenslager, assigned to Lycoming County

____________________________________________


1
  The docket indicates Appellant’s proper last name is Frederick and not
Fredericks. See Trial Court Order, 1/22/14. Accordingly, we have amended
the caption to reflect the correct last name.
2
  Unless another source is cited, the facts are taken from the trial court’s
Pa.R.A.P. 1925(a) Opinion, 12/23/14, at 1-4.
J-S38023-15



Domestic Relations, attempted to serve upon Appellant a notice of a

contempt hearing.     N.T. Suppression, 11/1/12, at 8-9.    In the process of

locating Appellant, Detective Loudenslager discovered Appellant resided with

Miranda Welsh (“Welsh”).        Id. at 10.    A background check on Welsh

revealed that she had an outstanding bench warrant in Clinton County

relating to child support.   Id.   It also revealed that the “Lycoming County

Adult Probation had a warrant for her arrest.” Id. Eventually, Loudenslager

identified an address where Appellant and Welsh were believed to be

residing.    Id. at 10-11.   Accompanied by Lycoming County Deputy Sheriff

Eric Spiegel, Loudenslager went to the address to serve the arrest warrant

and the contempt hearing notice upon Welsh and Appellant, respectively.

Id. at 11.

      Spiegel and Loudenslager knocked on the back door of the residence

several times but there was no answer.        Loudenslager believed he could

hear someone in the residence. Spiegel and Loudenslager then went to the

main or common entrance of the building and knocked on the front door

several times and there still was no answer.      Spiegel, however, observed

that Appellant and Welsh had their names on the mailbox for the residence.

Spiegel and Loudenslager then returned to the back entrance that was

directly attached to the residence and began to knock again.          Spiegel

realized that the door was locked but it could be pushed open. He opened

the door and noticed that a television was on.




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      Before   entering    the   residence,   however,   he   and    Loudenslager

announced that they were law enforcement and that they had a warrant.

They then began searching the residence room-by-room for Welsh. When

they got to a rear bedroom with its door ajar, they realized someone was

inside. They announced their presence again, but still received no response.

Spiegel then opened the bedroom door and saw Welsh and young children

lying on a bed.   When Spiegel opened a closet door to see if anyone was

hiding in it, he observed a sawed-off shotgun leaning against a pile of

clothes.   Given the discovery of the sawed-off shotgun in Appellant’s

residence, and Appellant’s prior criminal record, Appellant was charged with

persons not to possess a firearm (18 Pa.C.S.A. § 6105(a)(1)), and

prohibited offensive weapons (18 Pa.C.S.A. § 908(a)) at docket number

355-2012 (“First Case”).

      Thereafter, in connection with a December 11, 2011 home-invasion

robbery, Appellant was charged with multiple offenses, including robbery,

burglary, theft by unlawful taking, receiving stolen property and simple

assault, at docket number 1445-2012 (“Second Case”).                The sawed-off

shotgun recovered in Appellant’s residence also was used as evidence in the

Second Case.

      Appellant was represented by different attorneys in both cases. In the

First Case, Appellant filed a motion to suppress the sawed-off shotgun,

arguing that the search itself was unconstitutional as it was not supported by

probable cause.   The trial court denied Appellant’s suppression motion.       A

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few months later, with respect to the Second Case, Appellant filed a motion

to suppress the sawed-off shotgun, arguing that Detective Loudenslager and

Deputy Spiegel violated the knock and announce rule.            The trial court

conducted a suppression hearing, at which the Commonwealth presented the

testimony of Detective Loudenslager and Deputy Spiegel.           Loudenslager

testified that he, in plain clothes, and Spiegel, in his sheriff’s department

uniform, arrived at the address and approached the front door of the

building but it was locked.      Id. at 12, 14-15.   Loudenslager also testified

that upon reaching the front door Spiegel indicated to him that both

Appellant’s and Welsh’s names appeared on the mailbox for the residence.

Id. at 12.

      Loudenslager testified that he and Spiegel then went up a fire escape

to a direct entrance to the residence. Id. at 13. Loudenslager testified that

they knocked on the door loud enough that someone inside would have

heard. Id. at 18. He also testified that, although he could not see inside, he

heard someone move and turn the lock on the door, which he relayed to

Spiegel.     Id.   at 13-15.   Loudenslager testified that they knocked several

more times but there was no response.         Id. at 14.   Loudenslager further

testified that he then left Spiegel at the backdoor and returned to the front

door to attempt to contact a neighbor. Id. at 15. He was unsuccessful in

his attempt. Id.

      Loudenslager also testified that Spiegel, still at the backdoor, alerted

him that he had an open door, so Loudenslager returned to the backdoor.

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J-S38023-15



Id. at 16.    He testified that the officers, from outside the apartment,

scanned the room but it was empty.       Id.   Loudenslager testified that the

officers announced several times who they were, that they were coming in,

and that they had a warrant.     Id. at 17.    Loudenslager testified that the

officers then entered the residence and began to clear the apartment. Id. at

18.

      On cross-examination, Loudenslager acknowledged that he could not

say with any certainty whether someone looking from inside the residence

could see the officers on the fire escape. Id. at 30.

      Next, the Commonwealth presented Deputy Spiegel’s testimony.

Spiegel testified that he and Loudenslager knocked on the back door

multiple times, loud enough that someone inside would have heard, but

there was no answer.     Id. at 36.   Spiegel also testified that at that time

Loudenslager indicated he heard someone inside of the apartment, Spiegel

was wearing an ear bud radio and could not hear anyone within. Id. at 38-

39.

      Spiegel testified that the officers then attempted to look in the

windows but could not see inside so they proceeded to the building’s main

entrance. Id. at 37. He testified that they could not gain entry through the

main entrance because it was a locked common entrance for the entire

building; however, while at the front door Spiegel observed Appellant’s and

Welsh’s names on the mailbox for the residence. Id. Spiegel testified that

the officers then returned to the back door.    Id. Spiegel testified that he

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J-S38023-15



reached the back door first, began to knock, and quickly realized that,

although the door was locked, if he simply pushed the door would open. Id.

at 37. Spiegel testified that he did push the door open and, while outside

the residence, announced either “police warrant” or “sheriff’s warrant” but

no one replied. Id. at 40-41. Spiegel testified that upon opening the door

he did not see anyone, but the TV was on and muted.           Id. at 41.   He

testified that after his initial assessment, he announced again, and he and

Loudenslager entered the apartment, and began to search it room-by-room

for Welsh. Id. at 42.

       Following the hearing, the trial court denied the suppression motion in

the Second Case. In so doing, the trial court concluded that, even though a

violation of the knock and announce rule occurred, it did not trigger

suppression of the sawed-off shotgun.3 The trial court reasoned:

              Despite the technical violation of knock and announce by
       Spiegel and Loudenslager, the [c]ourt finds it does not trigger
       exclusion as an appropriate remedy. The entry does not appear
       to raise fundamental constitutional concerns such as expectation
       of privacy and was not done in bad faith. Spiegel announced his
       identity and purpose prior to entering the threshold of the
       apartment and also entering the bedroom. Moreover, in regards
       to the purpose of the knock and announce rule, the entry did not
       result in injury to an individual or property. . . .
____________________________________________


3
  The record indicates that Appellant filed a second suppression motion titled
“Motion to Suppress Nunc Pro Tunc” in the First Case. Appellant sought to
suppress the sawed-off shotgun on the basis of a knock and announce rule
violation. N.T. Suppression, 11/1/12, at 7. The trial court, however, denied
Appellant’s “nunc pro tunc” suppression motion and Appellant does not
challenge its denial in the appeal sub judice. Accordingly, this appeal
concerns only the suppression issue raised in the Second Case.




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J-S38023-15


             [T]he violation of the knock and announce rule was merely
       a technical non-compliance. Spiegel and Loudenslager knocked
       repeatedly on the backdoor and announced their presence prior
       to crossing the threshold of the apartment.


Trial Court Opinion, 12/11/12, at 6-7.

       Both cases were consolidated for trial.4 On October 31, 2013, a jury

found Appellant guilty of prohibited offensive weapons in the First Case and

burglary, robbery, theft by unlawful taking, among others, in the Second

Case. After trial, Appellant pled guilty to the outstanding, severed charge of

persons not to possess a firearm in the First Case.5 On February 4, 2014,

the trial court sentenced Appellant to an aggregate of 25 to 50 years’

imprisonment for both cases.            Appellant timely appealed to this Court.

Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, arguing that the trial court erred in denying his motion to suppress

the sawed-off shotgun in the Second Case. The trial court filed a Pa.R.A.P.

1925(a) opinion, incorporating its opinions issued in response to Appellant’s

respective suppression motions.
____________________________________________


4
  Despite the consolidation, the two cases remain separate and independent
from one another.
5
   It is worth noting that, even if Appellant had preserved a knock and
announce challenge in the First Case, the outcome of this appeal, which is
limited to the issue of suppression, would not affect Appellant’s guilty plea to
persons not to possess a firearm and the sentence received therefor. See
Commonwealth v. Rachak, 62 A.3d 389, 391 n.1 (Pa. Super. 2012)
(“When a guilty plea is entered, all grounds of appeal are waived other than
challenges to the voluntariness of the plea and the jurisdiction of the
sentencing court.”), appeal denied, 67 A.3d 796 (Pa. 2013).




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J-S38023-15



       On appeal, Appellant argues only that the trial court erred in denying

his suppression motion in the Second Case, because “law enforcement

officers failed to announce their identity, authority and purpose prior to

forcibly entering and conducting a search of [his] residence in violation of

the ‘knock and announce’ Rule, Pa.R.Crim.P. 207[.]” Appellant’s Brief at 7.6

Appellant essentially argues that the trial court erred in declining to suppress

the evidence of the sawed-off shotgun, notwithstanding its conclusion that

the police officers violated the knock and announce rule.

       In reviewing appeals from an order denying suppression, our standard

of review is limited to determining

       whether [the trial court’s] factual findings are supported by the
       record and whether [its] legal conclusions drawn from those
       facts are correct. When reviewing the rulings of a [trial] court,
       the appellate court considers only the evidence of the
       prosecution and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record
       as a whole.[7] When the record supports the findings of the
       [trial] court, [we are] bound by those facts and may reverse only
       if the legal conclusions drawn therefrom are in error.

____________________________________________


6
  Appellant does not argue that the violation of the knock and announce rule
implicates any rights guaranteed under the Fourth Amendment to the United
States Constitution. Even if he had, the Supreme Court has determined that
the exclusionary rule is inapplicable to Fourth Amendment knock and
announce violations. See Hudson v. Michigan, 547 U.S. 586, 594-95
(2006).
7
  For cases in which the suppression hearing occurs after October 30, 2013,
the scope of review of a suppression order encompasses only the record
adduced at the suppression hearing. In the Interest of L.J., 79 A.3d
1073, 1088-89 (Pa. 2013). We may examine the entire record here,
because the suppression hearing occurred on November 1, 2012.



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J-S38023-15



Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015).

        Pennsylvania Rule of Criminal Procedure 207 codifies the “knock and

announce” rule:

       (A) A law enforcement officer executing a search warrant shall,
       before entry, give, or make reasonable effort to give, notice of
       the officer’s identity, authority, and purpose to any occupant of
       the premises specified in the warrant, unless exigent
       circumstances require the officer’s immediate forcible entry.[8]

       (B) Such officer shall await a response for a reasonable period of
       time after this announcement of identity, authority, and purpose,
       unless exigent circumstances require the officer’s immediate
       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. 207.9       “Although this rule is frequently referred to as ‘knock

and announce,’ the rule actually imposes no specific obligation to knock.”

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

Commonwealth v. Doyen, 848 A.2d 1007, 1012 (Pa. Super. 2004)).

Nonetheless, the rule requires that police officers announce their identity,

purpose and authority and then wait a reasonable amount of time for the

____________________________________________


8
  Forcible entry is “any unannounced entry, regardless of the actual force
used.” Commonwealth v. Duncan, 390 A.2d 820, 824 (Pa. Super. 1978)
(citing Sabbath v. United States, 391 U.S. 585 (1968)).
9
  Rule 207 came about in 2000 because of the renumbering of Rule 2007, its
predecessor.    Rule 207 was amended, effective April 1, 2001.       The
amendments to Rule 207 were minor and did not substantially change the
import of the rule.




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J-S38023-15



occupants     to    respond     prior    to    entering   any   private   premises.10

Commonwealth v. Crompton, 682 A.2d 286, 288 (Pa. 1996).                          This

requirement, however, will be relaxed only in the presence of exigent

circumstances.       Carlton, 701 A.2d at 148.            Our Supreme Court has

recognized only four exigent circumstances:

        1. the occupants remain silent after repeated knocking and
        announcing;

        2. the police are virtually certain that the occupants of the
        premises already know their purpose;

        3. the police have reason to believe that an announcement prior
        to entry would imperil their safety; [or11]

        4. the police have reason to believe that evidence is about to be
        destroyed.

____________________________________________


10
     Discussing the genesis of the rule, our Supreme Court explained:

        The “knock and announce” rule’s origins pre-date the United
        States Constitution. It was born in English Common Law and
        was subsequently adopted in America. In recent times, the
        “knock and announce” rule has assumed a Constitutional
        dimension. Both our Supreme Court and United States Supreme
        Court have held that the Fourth Amendment’s prohibition against
        unreasonable searches and seizures applies to the manner of a
        warrant’s execution. Even a valid warrant may not be executed
        in an unreasonable manner; unreasonableness is determined on
        a case-by-case basis.

Commonwealth v. Carlton, 701 A.2d 143, 147 (Pa. 1997) (citations and
some quotations marks omitted).
11
   Even though the exigencies are enumerated with the conjunctive “and,”
courts have held that “any one of the instances justifies noncompliance with
the knock and announce rule.” Commonwealth v. Piner, 767 A.2d 1057,
1059 n.1 (Pa. Super. 2000) (holding that the second exigency applied
because “a uniformed officer stood under a porch light and engaged the
attention of at least several occupants with an announcement of his identity,
authority, and purpose”).



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J-S38023-15



Commonwealth v. Chambers, 598 A.2d 539, 541 (Pa. 1991); accord

Commonwealth v. Means, 614 A.2d 220, 222 (Pa. 1992); Crompton, 682

A.2d at 288; Carlton, 701 A.2d at 147. The Commonwealth here does not

argue that exigent circumstances exist to justify noncompliance with the

knock and announce rule.

      “The purpose of the ‘knock and announce’ rule is to prevent violence

and physical injury to the police and occupants, to protect an occupant’s

privacy expectation against the unauthorized entry of unknown persons, and

to prevent property damage resulting from forced entry.” Chambers, 598

A.2d at 541. The purpose of the rule may be achieved only through police

officers’ full compliance. See id. Indeed, our Supreme Court has held that

“in   the   absence   of   exigent   circumstances,   forcible   entry   without

announcement of [identity, authority and] purpose violates Article I, Section

8 of the Pennsylvania Constitution, which proscribes unreasonable searches

and seizures.”   Carlton, 701 A.2d at 148 (“In a free society, the mere

presence of police does not require an individual to throw open the doors to

his house and cower submissively before the uniformed authority of the

state.”).   Our Supreme Court has determined that “the remedy for

noncompliance with the knock and announce rule is always suppression.”

Crompton, 682 A.2d at 290 (emphasis added).

      During a suppression hearing, the Commonwealth bears the burden of

proving that the police seized evidence without violating defendant’s

constitutional rights. Id. at 288. “The Commonwealth can satisfy its burden

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J-S38023-15



by establishing either that the police complied with the knock and announce

rule or that the circumstances satisfied an exception.”         Id. (emphasis

added).

      With the foregoing principles in mind, we now address Appellant’s

argument that the trial court erred in denying the remedy of suppression sub

judice upon its determination that a knock and announce violation took place

in the Second Case. As noted earlier, here the trial court correctly concluded

that the police officers violated the knock and announce rule. The facts of

this case indicate that the police failed to announce their identity, authority

and purpose until after they opened the back door to Appellant’s residence.

      As we noted above, “the remedy for noncompliance with the knock

and announce rule is always suppression.” Crompton, 682 A.2d at 290

(emphasis added) (concluding that this Court “was in error when it found the

police violated the knock and announce rule but did not suppress the seized

evidence”). Here, the trial court denied the remedy of suppression based on

its conclusion that no constitutional rights were implicated and that the

police officers did not act in bad faith.    We disagree.   In Crompton, our

Supreme Court explained that a knock and announce violation always

infringes upon a defendant’s fundamental rights guaranteed under Article I,

Section 8 of the Pennsylvania Constitution.       Id.   Also, the trial court’s

determination that it can deny the remedy of suppression for a knock and

announce rule violation based on its finding that the police officers did not

act in bad faith is bereft of any legal support. The trial court does not cite

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J-S38023-15



any cases in support of this bad faith proposition and our review of the law

yields none. To the contrary, it is settled that under Article I, Section 8 of

the Pennsylvania constitution, a good faith exception to the exclusionary rule

does not exist. See Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa.

1991) (rejecting the good faith exception to the exclusionary rule set forth in

United States v. Leon, 468 U.S. 897 (1984), and concluding that a good

faith exception to the exclusionary rule would frustrate the guarantees

embodied in Article I, Section 8, of the Pennsylvania Constitution); see also

Commonwealth v. Arnold, 932 A.2d 143, 148 (Pa. Super. 2007) (citing

Edmunds for the proposition that a good faith exception to the exclusionary

rule does not exist under the Pennsylvania Constitution).         Accordingly,

consistent with Chambers, Means, Crompton, and Carlton, we are

constrained to conclude that the trial court erred in denying Appellant’s

motion to suppress the sawed-off shotgun in connection with the Second

Case after it determined that a knock and announce violation occurred.

      To the extent the Commonwealth relies on Commonwealth v. Davis,

595 A.2d 1216 (Pa. Super. 1991), such reliance is misplaced because the

legal effect of Davis has been limited by subsequent decisions of our

Supreme Court.    In Davis, in executing a search warrant, a police officer

knocked on the front door of the appellant’s premises several times. When

the officer did not receive a response, and a few seconds had passed, a

second officer peered through a window situated to the right of the door.

That officer observed people in the living room, but they did not respond to

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J-S38023-15



the knocks.   Several seconds later, the first officer knocked again and

managed to open the front door. As the door opened, the officer announced

himself and then entered the premises. Arguing a knock and announce rule

violation, the appellant moved to suppress the evidence seized from the

residence. The trial court granted the appellant’s suppression motion.

     On appeal, a panel of this Court agreed with the Commonwealth and

reversed the trial court’s grant of the appellant’s suppression motion. In so

doing, the panel reasoned:

     Even though there was no technical compliance with Rule 2007’s
     notice requirement, this does not ipso facto necessitate a finding
     that the evidence seized must be suppressed. . . . In the case at
     bar, because of our conclusion that the police had a valid search
     warrant, the police would have been entitled to enter the
     premises forcibly and conduct a search with or without the
     permission of the occupants. Moreover, the manner and method
     of entry by the police was made without injury to the persons or
     property, hence the purpose of Rule 2007 in preventing violence
     to persons and damage to property was fulfilled.

            Therefore, given the repeated knocking on the front door
     to the defendant’s premises, the proximity to the occupants (in
     the living room adjacent) to the entry during the repeated
     notification efforts (“knocking”) and the passage of more than 15
     seconds, we find the police’s identification of themselves and
     their purpose would have been futile gesture.

Davis, 595 A.2d at 1223 (citations omitted) (emphasis in original).

Although Davis is factually similar to the case sub judice, its holding has

been limited by subsequent decisions of our Supreme Court, such as

Chambers, Means, Crompton, and Carlton. In these subsequent cases,

the Court has determined categorically that a knock and announce violation

requires the suppression of evidence. Thus, complete compliance with the

knock and announce rule is required unless one of the four exigencies


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J-S38023-15



applies.   See Chambers, supra; Means, supra; Crompton, supra; and

Carlton, supra.        Given our Supreme Court’s subsequent decisions, we

decline to follow Davis.

      Similarly, we reject the Commonwealth’s reliance on Commonwealth

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

Sanchez, 907 A.2d 477 (Pa. 2006), because those decisions involved the

denial of suppression based on a Fourth Amendment violation.       Instantly,

Appellant does not raise a Fourth Amendment violation.

      In sum, we conclude the trial court erred in denying Appellant’s motion

to suppress the evidence, i.e., the sawed-off shotgun, with respect to the

Second Case. Accordingly, we vacate the judgment of sentence pertaining

to the Second Case only, and remand the matter to the trial court for further

proceedings.

      Judgment    of    sentence   vacated.   Case   remanded    for   further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2015




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