J-S45017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CRYSTAL JOYCE SPENCER                      :
                                               :
                       Appellant               :   No. 1918 MDA 2017

       Appeal from the Judgment of Sentence Entered November 28, 2017
                In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000294-2017


BEFORE:      OTT, J., MUSMANNO, J. and PLATT, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 31, 2018

        Crystal Joyce Spencer appeals from the judgment of sentence imposed

on November 28, 2017, in the Bradford County Court of Common Pleas. The

trial court sentenced Spencer to nine months’ probation and imposed an

aggregate $400.00 in fines, after she was convicted of possession of a small

amount of marijuana and possession of drug paraphernalia1 following a

stipulated non-jury trial. On appeal, Spencer contends the trial court erred in

denying her pre-trial motion to suppress the evidence recovered during a

warrantless search.2 For the reasons below, we affirm.
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   Retired Senior Judge assigned to the Superior Court.

1   See 35 P.S. §§ 780-113(a)(31) and (32), respectively.

2 We note that in her questions presented, Spencer also challenges the trial
court’s denial of her pretrial motion for writ of habeas corpus. See Spencer’s
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       The relevant facts as developed during Spencer’s suppression hearing

are as follows.     In March of 2017, Constable Bruce Pond posted a 10-day

notice of eviction at 320 North Center Street in Canton, Pennsylvania, where

Spencer and her boyfriend, Nathan Sechrist3 lived. See N.T., 4/24/2018, at

4-5. On March 10, 2017, after the expiration of the 10-day notice, Constable

Pond enlisted two officers from the Canton Police Department to assist him in

physically evicting the tenants. He explained he requested the help of the

police for his safety because (1) he knew there was “more people staying

there” than just the two named tenants; (2) he encountered an “aggressive”

dog in the yard when he posted the 10-day notice; and (3) the female landlord

was going to accompany him to the eviction. Id. at 5-6. Constable Pond also

explained the eviction was from a second floor apartment, accessible only by

a “pretty narrow” and long back staircase. Id. at 9.

       The constable, the landlord and two police officers arrived at the

property at 9:00 a.m.          Constable Pond proceeded up the stairs to the

apartment, obtained the keys from the landlord, and opened the door. He


____________________________________________


Brief at 4. However, she presents no argument on this issue in her brief, and
for that reason, it is waived. See Commonwealth v. Phillips, 141 A.3d 512,
522 (Pa Super. 2016) (“[I]ssues raised in a Brief’s Statement of Questions
Involved     but not developed     in the Brief’s argument section will    be
deemed waived.”), appeal denied, 161 A.3d 796 (Pa. 2016). Moreover, the
claim also becomes moot based upon our disposition of her suppression issue.

3Sechrist’s name is spelled “Secrest” in the transcript and Spencer’s brief.
However, we will use the spelling as set forth in the trial court’s opinion.


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encountered Sechrist drinking a cup of coffee in the kitchen.            After the

constable told him he had to leave the apartment, Sechrist “bolted through

the living room … back to the bedrooms.” Id. at 10. The constable and the

officers followed him into the bedroom, where they observed Spencer still

sleeping in bed.     Sechrist woke her, and Constable Pond informed her

“today[’]s your eviction, you have to leave.” Id. at 11. The constable noted

the dog was in a cage in the bedroom.          Although Spencer initially resisted,

both she and Sechrist eventually left the apartment peacefully.

        Constable Pond testified he smelled marijuana when he was in the

bedroom.     After Spencer and Sechrist left the apartment, the constable

observed several marijuana cigarettes in the bedroom and living room. See

id. at 12-13. At that point, Constable Pond secured the apartment and the

officers left to apply for a search warrant.

        Canton Borough Police Officer Dalton Spencer testified he noticed the

odor of marijuana as soon as he entered the apartment, and observed a

“marijuana roach” on the living room table and additional paraphernalia in the

bedroom. See id. at 27. When they were checking the attic to make sure no

other    persons   were   present,   the   officer    observed    additional   drug

paraphernalia. See id. at 28. Officer Spencer testified he and the other officer

asked Constable Pond and the landlord to secure the premises so that they

could obtain a search warrant. They executed the warrant later that same

day.



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       Spencer was subsequently charged with possession of a small amount

of marijuana and possession of drug paraphernalia. On June 15, 2017, she

filed an omnibus pretrial motion, seeking suppression of the evidence

observed during a warrantless search, and a writ of habeas corpus based upon

the Commonwealth’s failure to establish a prima facie case. The trial court

conducted a suppression hearing on August 1, 2017. Thereafter, on August

31, 2017, the court entered an order denying Spencer’s motion to suppress,

and motion for writ of habeas corpus. On September 27, 2017, Spencer filed

a motion requesting the trial court amend its order to allow an immediate

appeal pursuant to 42 Pa.C.S. § 702(b), which the trial court subsequently

denied.    On November 28, 2017, the case proceeded to a bench trial on

stipulated facts.      The court found Spencer guilty of both charges and

sentenced her to a term of nine months’ probation for possession of drug

paraphernalia, and an aggregate fine of $400.00. This timely appeal follows.4

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4  On December 28, 2017, the trial court ordered Spencer to file a concise
statement of errors complained of on appeal within 21 days. When she failed
to do so, the court entered another order on February 27, 2018, in which it
acknowledged that the failure to file a timely concise statement constitutes
ineffectiveness per se. See Order Pursuant to Rule 1925(a) at ¶ 3. Because
(1) Spencer previously sought permission to appeal the denial of her
suppression motion, and (2) the case was later tried on stipulated facts, the
court anticipated the issue on appeal would be limited to the denial of her
suppression motion, which the court explained in an opinion filed on
September 1, 2017.       Therefore, the trial court provided Spencer with
additional time – until March 9, 2018 – to file a concise statement. Spencer
filed her concise statement on March 5, 2018.




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       On appeal, Spencer contends the trial court erred in denying her pretrial

motion to suppress because she was subject to a warrantless, unlawful search.

Specifically, she argues: (1) police officers are not statutorily authorized to

effectuate evictions, and Constable Pond’s reasons for requesting security

were unreasonable; (2) the search warrant was based solely on information

gathered during the warrantless search; (3) Spencer possessed a reasonable

expectation     of   privacy    in   the       apartment;   and   (5)   the   inevitable

discovery/independent source doctrines do not apply. See Spencer’s Brief at

15-36.

       Our well-settled standard of review is as follows:

              Our 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, we are bound by these findings and may
       reverse only if the court’s legal conclusions are erroneous. The
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      Pursuant to Pa.R.A.P. 1925(c)(3), when the failure to file a concise
statement is the result of counsel’s ineffectiveness, an appellate court should
remand the case “for the filing of a Statement nunc pro tunc and for the
preparation and filing of an opinion by the judge.” Pa.R.A.P. 1925(c)(3).
However, this Court has found remand unnecessary where counsel filed an
untimely statement, and the trial court issued an opinion addressing the claim.
See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
banc). Here, counsel’s untimely statement lists two issues, both of which were
raised in Spencer’s pretrial motion, and disposed of by the trial court in its
September 1, 2017, opinion. Accordingly, we find remand is unnecessary.


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        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 law of the courts below are subject to our plenary review.

        Moreover, appellate courts are limited to reviewing only the
        evidence presented at the suppression hearing when examining a
        ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34–35 (Pa. Super. 2016)

(quotation omitted), appeal denied, 169 A.3d 524 (Pa. 2017).

        The trial court denied Spencer’s suppression motion because it

concluded the police were “lawfully present as back-up security” when they

observed marijuana and paraphernalia in plain view in the apartment. Trial

Court Opinion, 8/31/2017, at 3. Although recognizing “Pennsylvania statutory

law does not authorize police to evict tenants,” 5 the court, nevertheless,

concluded Constable Pond’s “request to have law enforcement accompany him

was reasonable and justified.” Id. at 2. While we agree with the court’s ruling

denying Spencer’s motion to suppress, we do so for different reasons. See

In Interest of N.B., 187 A.3d 941, 945 (Pa. Super. 2018) (en banc) (“It is

well settled that this Court may affirm “on any valid basis appearing of

record.”) (quotation omitted).

        As the trial court concedes, police officers are not statutorily authorized

to evict tenants. Rather, the Landlord Tenant Act specifies the power to evict

lies with a “writ server, constable or sheriff.” 68 P.S. §§ 250.503(b). See

also 68 P.S. § 504 (requiring the “writ server, constable or sheriff” to “make

____________________________________________


5   See Trial Court Opinion, 8/31/2017, at 2 n.1.

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return of the writ of possession to the justice of the peace within ten days

after receiving the writ” and showing, inter alia, “the time and date of any

forcible entry and ejectment”). Nevertheless, the court, herein, found it was

“reasonable and appropriate – and not unlawful – for Constable Pond to

request police accompaniment under the circumstances” of this case. Trial

Court Opinion, 8/31/2017, at 3. While we agree it was reasonable for the

constable to request police back-up, we do not believe the constable’s

subjective concern for his own safety justified the officers’ warrantless entry

into Spencer’s apartment before the constable evicted her.

      Both the United States and Pennsylvania Constitutions protect citizens

from “unreasonable searches and seizures by police in areas where individuals

have a reasonable expectation of privacy.” Commonwealth v. Loughnane,

173 A.3d 733, 741 (Pa. 2017). “[A] warrantless search of a residence is per

se unreasonable unless justified by a specific exception to the warrant

requirement.” Commonwealth v. Gutierrez, 750 A.2d 906, 909 (Pa. Super.

2000).

      Before Constable Pond evicted Spencer and Sechrist, there is no doubt

Spencer had a reasonable expectation of privacy in her apartment. Absent

consent or exigent circumstances, the officers had no basis to enter the

apartment without a warrant. Constable Pond’s concern for his security could

have been alleviated if the officers had remained outside the residence, ready




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to intervene if the circumstances required them to do so.6 Although Sechrist

ran into the bedroom when Constable Pond informed him he was being

evicted, there was no testimony or evidence that his actions posed a present

security risk justifying the officers’ immediate intervention. Accordingly, in

the absence of statutory authority to assist in evictions, or another recognized

exception to the warrant requirement, we conclude the officers’ warrantless

entry into Spencer’s apartment was unlawful.

       Nevertheless, we find the evidence recovered from Spencer’s apartment

is admissible pursuant to the inevitable discovery/independent source

doctrine.

       In Commonwealth v. Mason, 637 A.2d 251, 254 (Pa. 1993), the

Pennsylvania Supreme Court recognized that “the ‘independent source’

doctrine applied in Pennsylvania.” The doctrine provides:

       If the prosecution can demonstrate that the allegedly tainted
       evidence was procured from an independent origin—a means
       other than the tainted sources—the evidence will be admissible.

Id., quoting Commonwealth v. Melilli, 555 A.2d 1254, 1262 (Pa. 1989).

However, the Mason Court declined to apply the doctrine under the facts of

that case, where police officers forcibly entered an apartment they had under

____________________________________________


6 We note Constable Pond’s concern for his safety was based upon his
knowledge that there might be multiple persons in the apartment, and an
aggressive dog. There was no indication, however, that any of the occupants
were armed or dangerous.




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surveillance for drug sales. Although prior to their entry, one officer had left

to apply for a search warrant based on information that would have been

sufficient to demonstrate probable cause,7 the Court opined:              “Where the

police battering ram is at the door, without exigent circumstances and without

a warrant, it is plain that the violent shattering of the door constitutes an

unconstitutional     invasion    of   privacy    of   which   every   person   in   this

Commonwealth may complain.” Id. at 256.

       Subsequently, in Commonwealth v. Melendez, 676 A.2d 226 (Pa.

1996), the Court adopted the following limitation to the doctrine as set forth

by Justice Cappy in his concurring opinion in Mason, supra:

       [A]pplication of the “independent source doctrine” is proper only
       in the very limited circumstances where the “independent source”
       is truly independent from both the tainted evidence and the police
       or investigative team which engaged in the misconduct by which
       the tainted evidence was discovered.

Melendez, supra, 676 A.2d at 231, quoting Mason, supra, 637 A.2d at 258-

259 (Cappy J., Concurring). Recently, a panel of this Court observed:

       [T]he inevitable discovery doctrine is not a substitute for the
       warrant requirement. Police must demonstrate that the
       evidence would have been discovered absent the police
       misconduct, not simply that they somehow could have lawfully
       discovered it.

Commonwealth v. Perel, 107 A.3d 185, 196 (Pa. Super. 2014) (emphasis

in original), appeal denied, 124 A.3d 309 (Pa. 2015).


____________________________________________


7   See Mason, supra, 637 A.2d at 252-253.


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      Here, although we agree the police officers unlawfully entered Spencer’s

apartment, we conclude suppression of the evidence recovered therein is not

necessary because Constable Pond also independently observed evidence of

drug use in plain view. The relevant portion of his testimony is as follows:

      Q     … I guess where you left off was the [landlord] there
      watching [Good get dressed] in the bedroom and you officers are
      outside the bedroom. …

            Then what happened next?

      A     Well when [we] were in the door I smell[ed] the smell of
      marijuana in the bedroom.

      Q     Okay.

      A     [O]kay, um, at that time I, I, everything was going on in the
      bedroom and everything and then they came out and they left and
      um, they left the premises and then as I walked, as I was standing
      in the bedroom I seen there was a table in front of a TV that had
      um, marijuana, ah, roaches I guess you call em, cigarettes and
      burnt …

      Q     The appearance of a marijuana cigarette?

      A     Excuse me?

      Q     Are you familiar with the smell of marijuana?

      A     Oh yes, yes.

      Q     Are you familiar with the hand rolled cigarettes?

      A     Yes, yes after they’re burned or they’re smoked.

      Q     Okay and is that what you saw there?

      A      Yea, that’s what I saw there and in the living room when I
      came through there was one on a soda can. Just a marijuana
      cigarette butt on top of the soda can on the coffee table in the
      living room.

      Q     Okay.



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       A     And um, it, well they left and I told, I told the two officers,
       I says there’s marijuana there and I says it smells and they agree
       with me yea there was a smell …

N.T, 8/1/2017, at 12-13.

       As noted above, Constable Pond testified he smelled marijuana in the

bedroom of the apartment, and viewed two marijuana cigarettes in plain view,

one in the bedroom and one in the living room. Accordingly, while we agree

the officers unlawfully entered Spencer’s apartment before she was rightfully

evicted8 and the evidence they saw in plain view could not supply probable

cause for a search warrant, the testimony clearly demonstrates Constable

Pond – who was authorized to enter Spencer’s apartment to effectuate her
____________________________________________


8 We note, too, that after Spencer was lawfully evicted, she would have had
no reasonable expectation of privacy in the apartment, and the police could
have entered at that time. “An expectation of privacy exists if a person has a
subjective expectation of privacy that society is willing to recognize as
legitimate and reasonable.” Loughnane, supra, 173 A.3d at 741. The
Pennsylvania Supreme Court’s decision in Commonwealth v. Gordon, 683
A.2d 253 (Pa. 1996), is instructive.

       In that case, the Court considered whether the defendant had a
legitimate expectation of privacy in the abandoned house where he was
staying. The defendant was living in the dining room, which was set off from
the rest of the house by a hanging sheet. See id. at 255. Although the
Gordon Court recognized a person may possess a legitimate expectation of
privacy even if he lacks a “common-law interest in the real property,” it
ultimately determined the defendant was unable to demonstrate a legitimate
expectation of privacy under the facts of that case. Id. at 258. The Gordon
Court observed: “Among the critical characteristics of ownership is the right
to exclude others from the premises in question.” Id. The Court found the
defendant’s hanging of a sheet did not serve to exclude others from the dining
room of the abandoned house. See id. The same reasoning applies here.
Once Spencer was (lawfully) evicted from the apartment, she had no authority
to exclude others from the premises, and accordingly, would have been unable
to demonstrate a legitimate expectation of privacy therein.


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eviction – also independently viewed drug paraphernalia and smelled the odor

of marijuana. Accordingly, Constable Pond was an independent source for the

tainted evidence, which would have been inevitably discovered absent the

unlawful police conduct. Therefore, we affirm the order of the suppression

court.

         Order affirmed.

         Judge Musmanno joins this memorandum.

         Judge Platt concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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