J-S20041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 2579 EDA 2016
    WARREN HAND,                               :
                                               :
                       Appellee

                      Appeal from the Order July 13, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012187-2015


BEFORE:      BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 27, 2017

       This is a Commonwealth appeal from the order entered July 13, 2016,

in the Philadelphia County Court of Common Pleas, granting the pretrial

motion of appellee, Warren Hand, to suppress evidence recovered during an

illegal search.1     When this appeal first appeared before the panel, we

determined the trial court erred in concluding the investigating officer’s

minimally intrusive act of moving aside drapes so that he could look inside a

residence, violated Hand’s constitutional rights.       See Commonwealth v.

Hand, ___ A.3d ___, 2017 WL 3142408, *5 [2579 EDA 2016] (Pa. Super.

____________________________________________


1  Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth properly certified in its notice of appeal that the order
“terminates or substantially handicaps the prosecution.” Notice of Appeal,
8/4/2016. See Pa.R.A.P. 311(d).
J-S20041-17



2017) (unpublished memorandum). Nevertheless, we remanded so the trial

court could make additional findings as to whether the officer’s subsequent

search of a bedroom constituted a permissible protective sweep. See id. at

*6.   The trial court complied with our directive and filed a supplemental

opinion, in which it concluded the officer’s warrantless search of the bedroom

was illegal. See Supplemental Opinion, 8/25/2017, at 3. For the reasons

below, we now affirm the order of the trial court granting Hand’s suppression

motion.

      We recounted the facts underlying Hand’s conviction in our prior

memorandum as follows:

            On June 19, 2015, at about 12:10 a.m., Philadelphia Police
      Officer James Crown and his partner, Officer [Donald] Vandemay,
      were on patrol in the Kensington section of Philadelphia for the
      purpose of preventing gun violence. The officers responded to a
      radio call directing them to go to 3462 Frankford Avenue to
      investigate a report of a disturbance involving a person with a
      gun.

             Upon arrival, the front door to the property was open but
      was immediately shut. Officer Crown heard males yelling inside
      the property and observed drapes blowing out of a broken
      window. Officer Crown attempted to open the front door but it was
      locked. Thereafter, he walked up to the broken window, reached
      inside the property and moved the drapes which allowed him to
      observe [Hand] and a Nasir Lewis standing by a bedroom door.
      [Hand] was observed with a semi-automatic gun in his hand.
      Officer Crown announced his presence at which time [Hand]
      looked in the officer’s direction, retreated into the bedroom and
      slammed shut the bedroom door. The other male was directed to
      exit the property at which time he was taken into custody.

            Officer Crown then went inside the property and opened the
      bedroom door. [Hand] was removed from the bedroom and taken
      into custody by officers assisting Officers Crown and Vandemay.
      Officer Crown then went back inside the bedroom and performed

                                    -2-
J-S20041-17


        a search of the closet [where] he recovered a loaded .380 caliber
        Bersa semiautomatic firearm. Police seized the weapon, took it
        outside and observed a bullet lying on the steps to the residence
        matching the bullets inside the seized firearm.

             While at the property, [the o]fficer came in contact with a
        woman named Geisel Duarte sitting on the steps leading into the
        property. She stated that Lewis had “trashed” her house.

              When Lewis was asked where he lived, he gave the address
        to the property. [Hand] gave an address in Southwest
        Philadelphia. Officer Crown did not know what the argument was
        about, and did not know if anyone was hurt inside the residence.

              [Hand] testified that he was staying at the first floor
        residence with Lewis for several months before June 19, 2015. He
        stated that he developed a relationship with Ms. Duarte, who lived
        on the second floor of the residence. [Hand] testified that
        sometimes he would stay in her apartment with her.

Hand, supra, 2017 WL 3142408, at *1–2 (citation omitted).

        After Hand was charged with one count of persons not to possess

firearms,2 he filed a pretrial motion seeking suppression of the evidence,

based on the allegation that the firearm was recovered during an illegal

search.    Following a suppression hearing, the trial court granted Hand’s

motion, and this Commonwealth appeal followed.

        As noted above, we previously concluded Officer Crown acted properly

when he “‘momentarily brush[ed] aside a curtain flapping in the wind’ through

a smashed window to ensure ‘no one inside was in imminent danger.’” Id. at

*2 (citation omitted). Therefore, the only issue before us is whether, as the

Commonwealth asserts, the subsequent search of the bedroom constituted a



____________________________________________


2   See 18 Pa.C.S. § 6105(a)(1).

                                           -3-
J-S20041-17



permissible protective sweep for other possible assailants or victims.        See

Commonwealth’s Brief at 12.

      We reiterate our well-established standard of review:

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports those
      findings. The suppression court’s conclusions of law, however, are
      not binding on an appellate court, whose duty is to determine if
      the suppression court properly applied the law to the facts.

Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016) (quotation

omitted), appeal denied, ___ A.3d ___, 2017 WL 2588277 (Pa. 2017).

Furthermore, we emphasize: “[O]ur standard of review is highly deferential

with respect to the suppression court’s factual findings and credibility

determinations.” In re L.J., 79 A.3d 1073, 1080 n.6 (Pa. 2013).

      “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[,]”

which is “narrowly confined to a cursory visual inspection of those places in

which a person might be hiding.”      Maryland v. Buie, 494 U.S. 325, 327

(1990).    See Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001)




                                      -4-
J-S20041-17



(approving of protective sweep under Buie),3 cert. denied, 534 U.S. 994

(2001). This Court has interpreted Buie as approving two levels of protection:

       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. Potts, 73 A.3d 1275, 1281–1282 (Pa. Super. 2013)

(quotation omitted), appeal denied, 83 A.3d 415 (Pa. 2013). Therefore, the

question in the present case is whether Officer Crown articulated specific facts

to substantiate a reasonable fear for the safety of himself or others to justify

his re-entry into the apartment after both Hand and Lewis were detained

outside.

       In its supplemental opinion, the trial court found Officer Crown’s re-

entry into the apartment was illegal:

             Here, the re-entry of the house and the search of the
       bedroom clearly did not fit within the “first level” described above
       because [Hand] and Lewis were in custody outside the property.
       They no longer posed a threat to the officers and others present
       at the time and the bedroom and the closet were not locations
       from which [Hand] or Lewis could launch an attack or obtain a
____________________________________________


3 Although Taylor was a plurality decision, both the opinion announcing the
judgment of the court (“OJAC”) and the concurring and dissenting opinion
applied the two levels of protection announced in Buie, albeit to different
results. See Taylor, supra, 771 A.2d at 1273 (OAJC by Newman J. finding
protective sweep of basement valid), and at 1274-1275 (concurring and
dissenting opinion by Nigro, J. finding Commonwealth “failed to present
specific and articulable facts necessary to justify a protective sweep”).

                                           -5-
J-S20041-17


       weapon given that neither man was in close proximity to those
       locations.

             Under the “second” level, Officer Crown was not justified in
       re-entering the residence and walking into the bedroom because
       he did not articulate specific facts to justify a reasonable belief
       that someone was in the bedroom who posed a danger to the
       police or others. According to Officer Crown, he re-entered the
       house and the bedroom “to check the bedroom to secure it for any
       other people that are in there.” The officer, however, had no basis
       to do so because when he moved the curtain and looked into the
       residence, he only saw [Hand] and Lewis enter the bedroom and
       only [Hand] and Lewis exited the bedroom when he ordered those
       inside to exit it. There was no evidence presented indicating that
       anyone else was inside the bedroom or that, if there was, that
       person or persons posed a threat to the police or others. Thus,
       because both [Hand] and Lewis were in custody outside the
       residence and there was no evidence presented indicating that
       someone who posed a threat may have been in the bedroom,
       there was no remaining exigency that could justify the general
       exploratory search of the bedroom.

Supplemental Opinion, 8/25/2017, at 3 (record citation omitted).

       Our review of the record reveals ample support for the court’s findings.

At the time Officer Crown searched the bedroom, both Hand and Lewis were

secured outside of the residence.4             See N.T., 5/26/2016, at 15-16, 30.

Furthermore, Officer Crown testified that after Hand emerged from the

bedroom, he could see the entire room except the left side behind the door.

See id. at 16. The officer stated he went in to “check the bedroom to secure

it for any other people that [were] in there.” Id. at 15-16. However, Officer


____________________________________________


4 We note that, implicit in the court’s ruling, is the determination that Officer
Crown had the authority to enter the residence and secure Hand, whom the
officer had seen with a weapon before Hand fled to the bedroom.



                                           -6-
J-S20041-17



Crown failed to “articulate specific facts”5 to justify his belief that another

person, who posed a threat to his safety, might be in the bedroom. Indeed,

as the trial court pointed out, when the officer peered through the broken

window unannounced, he saw only Hand and Lewis.            Moreover, although

Officer Crown stated he saw “shadows moving under the [bedroom] door”

while Hand was inside, the officer provided no further facts to support an

inference that someone other than Hand was therein.6 N.T., 5/26/2017, at

15. Compare with Taylor, supra, 771 A.2d at 1268 (OJAC finding protective

sweep proper when two people officer saw enter the building minutes before

execution of warrant were not visible on first floor); Potts, supra, at 1282

(protective sweep of apartment proper when officers were investigating

possible domestic abuse; both woman who answered door, and man who ran

into bedroom when he saw police, were sweating and scared).7

        In Buie, the Supreme Court emphasized that a protective sweep must

“last[] no longer than is necessary to dispel the reasonable suspicion of danger

and in any event no longer than it takes to complete the arrest and depart the

premises.” Id. at 335. Here, at the time Officer Hand conducted the search,
____________________________________________


5   Potts, supra, 73 A.3d at 1282.

6 See Buie, supra, 494 U.S. at 332 (reiterating that reasonable suspicion
must be based on more than “a mere inchoate and unparticularized suspicion
or hunch”) (citation and internal punctuation omitted).

7In Potts, it does not appear the male and female were removed from the
apartment before the officer conducted the protective sweep. See Potts,
supra, 73 A.3d at 1279, 1282.


                                           -7-
J-S20041-17



both Hand and Lewis were detained outside of the residence.         The more

reasonable inference is that the officer entered the bedroom to search for the

weapon he had seen in Hand’s possession. Accordingly, we agree with the

trial court that Officer Crown did not possess the requisite reasonable

suspicion to conduct a protective sweep of the bedroom. Therefore, we affirm

the order of the trial court granting Hand’s pretrial suppression motion.

      Order affirmed.

      President Judge Emeritus Ford Elliott joins the majority decision.

     Judge Bowes files a dissenting memorandum.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2017




                                     -8-
