J. A21043/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
ANTIONE GAINEY,                           :         No. 2224 EDA 2018
                                          :
                           Appellant      :


         Appeal from the Judgment of Sentence Entered July 24, 2018,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0001165-2017


BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 04, 2019

        Antione Gainey appeals from the July 24, 2018 aggregate judgment of

sentence of 11½ to 23 months’ imprisonment, followed by 5 years’ probation,

imposed after he was found guilty in a bench trial of unlawful possession of a

firearm.1 After careful review, we affirm the judgment of sentence.

        The suppression court summarized the relevant facts of this case as

follows:

             During the suppression hearing, the Commonwealth
             presented the testimony of Philadelphia Police
             Detective Myrna Rivera of the East Detective Division
             Warrant Unit, who testified that, on December 14,
             2016, at about 6:45 a.m., she and three police officers
             proceeded to 4107 North 5th Street to serve an arrest
             warrant and two absconder warrants on [a]ppellant.
             Upon arrival at that location, the officers were met at
             the door by Calvin Gainey. After being told of the

1   18 Pa.C.S.A. § 6105.
J. A21043/19


            reason for police presence, he advised the detective
            that [a]ppellant was in a second floor front bedroom.
            The other officers proceeded to the bedroom and took
            [a]ppellant, who was hiding in a bathroom, into
            custody while Detective Rivera remained downstairs
            speaking to Calvin Gainey.

            While in the bedroom, one of the officers,
            Officer Shaw, observed a case of live .22 caliber
            bullets sitting in plain view on top of the mattress of a
            bed situated in the room. Upon being informed of the
            presence of the bullets, Detective Rivera went up to
            the bedroom and recovered the case of bullets. The
            detective then ordered the residence secured so that
            a search warrant could be obtained.

            Moreover, when the detective was inside the
            bedroom, she observed additional live bullets in plain
            view and also that the mattress in the bedroom was
            tilted. In her experience, the mattress was positioned
            in such a manner that caused her to believe that
            someone might be hiding behind or under it who could
            be a danger to her own and the officers’ safety. With
            the assistance of one of the other officers,
            Detective Rivera lifted the mattress revealing a black
            handgun between the bed’s mattress and box spring
            along with additional bullets.     These items were
            collected by Detective Rivera.

            Police thereafter obtained a search warrant for the
            property.     Upon executing the warrant, police
            recovered identification cards for [a]ppellant and an
            additional bullet from the front bedroom.

Suppression court opinion, 12/5/18 at 1-2 (citations to notes of testimony

omitted).

     Appellant was charged with one count of unlawful possession of a

firearm in connection with this incident. On May 19, 2017, appellant filed an

omnibus pre-trial motion to suppress the firearm and other physical evidence



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seized from the warrantless search of his bedroom. The suppression court

held an evidentiary hearing on November 2, 2017, at the conclusion of which

appellant’s motion was held under advisement. On November 27, 2017, the

suppression court entered an order denying appellant’s suppression motion.

Appellant waived his right to a jury and proceeded to a bench trial upon

stipulated evidence2 on May 25, 2018. On July 24, 2018, the trial court found

appellant guilty of unlawful possession of a firearm and sentenced him to




2   At trial, the parties stipulated to the following:

               On December 14, 2016, police arrived at [appellant’s]
               residence to serve an arrest warrant on [appellant]
               and were directed by a third party to [appellant’s]
               room.     (Notes of testimony, 5/25/18 at 7-8.)
               [Appellant] was found outside that room. (Id. at 8.)
               Inside the room, they found a loaded .22 caliber
               Beretta Model 21A, 86 .22-caliber live rounds,
               three 7.62 rifle rounds, a box of .45-caliber live
               rounds, one .357 round, and a school ID and parole
               card in [appellant’s] name. (Id. at 8-9.) [Appellant]
               has two prior Possession With Intent to Deliver felony
               convictions, making him ineligible to carry a firearm.
               (Id. at 10.) If called to testify, [appellant’s] Aunt
               would testify that [appellant] lived at the address
               where the firearms were recovered. (Id. at 10-11.)
               Additionally[,] photographs of [appellant’s] room,
               [appellant’s] warrants for arrest, [appellant’s]
               criminal record, and a Firearms Identification Unit
               Laboratory Report proving firearms were operable
               were all entered into evidence. (Id. at 11.)

Trial court opinion, 10/11/18 at 1 n.1 (notes of testimony citations
reformatted).


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11½ to 23 months’ imprisonment, followed by 5 years’ probation. This timely

appeal followed.3

        Appellant raises the following issue for our review:

              Did not the [suppression] court err in denying
              [appellant’s] motion to suppress the firearm and other
              items recovered incident to the illegal search of his
              bedroom without a warrant?

Appellant’s brief at 3.

        Our standard of review when addressing a challenge to a trial court’s

denial of a suppression motion is well settled.

              [An appellate court’s] 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, [the appellate court is] bound by [those]
              findings and may reverse only if the court’s legal
              conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

        Appellant contends that the suppression court erred in denying his

motion to suppress the firearm and ammunition found under a mattress in his




3   Appellant and the trial court complied with Pa.R.A.P. 1925.


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bedroom because “the warrantless search between the mattress and box

spring exceeded the permissible scope of a protective sweep pursuant to an

arrest.”   (Appellant’s brief at 10 (extraneous capitalization omitted).)

Appellant maintains that the suppression court’s “factual finding that the

mattress was tilted in such a manner permitting Detective Rivera to form a

reasonable belief that someone could be hiding under it . . . is not supported

by the record.” (Id. at 11 (internal quotation marks omitted).) We disagree.

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”        Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d 158

(Pa. 2009) (citation and internal quotation marks omitted). “[W]arrantless

searches and seizures are . . . unreasonable per se, unless conducted

pursuant to a specifically established and well-delineated exception to the

warrant requirement.”    Id. at 556.   One well-recognized exception to the

warrant requirement is the protective-sweep doctrine. “A protective sweep is

a quick and limited search of [the] premises, incident to an arrest and

conducted to protect the safety of police officers or others.” Commonwealth

v. Harrell, 65 A.3d 420, 435 (Pa.Super. 2013) (citation and internal quotation

marks omitted), appeal denied, 101 A.3d 785 (Pa. 2014). This court has

recognized that a protective sweep “cannot be lengthy or unduly disruptive

. . . and target only those areas where a person could reasonably be expected



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to hide.” Commonwealth v. Witman, 750 A.2d 327, 336 (Pa.Super. 2000)

(citation omitted), appeal denied, 764 A.2d 1053 (Pa. 2000), cert. denied,

534 U.S. 815 (2001).

           Police may perform a ‘protective sweep’ as an incident
           to a lawful arrest, in order to protect the safety of
           police officers and others. In such circumstances,
           officers may look into spaces immediately adjoining
           the place of arrest from which an attack could be
           immediately launched without any degree of suspicion
           other than that necessary to support the arrest. A
           protective sweep beyond such immediately adjoining
           areas is proper if police can articulate specific facts to
           justify a reasonable fear for the safety of police
           officers or others.     We consider the information
           available to police at the time of the sweep from the
           perspective of a reasonably prudent police officer.

Commonwealth v. Hall, 199 A.3d 954, 959 (Pa.Super. 2018) (citations,

internal quotation marks, and footnote omitted), appeal denied, 206 A.3d

1028 (Pa. 2019).

     Upon review, we find that the police officers’ protective sweep of

appellant’s bedroom in this case was constitutionally permissible. The record

reveals that on the morning of December 14, 2016, Philadelphia Police

Detective Myrna Rivera and three members4 of the East Detective Warrant

Unit went to appellant’s home to execute an arrest warrant and two absconder

warrants on him. (Notes of testimony, 11/2/17 at 7-8, 20.) Upon arriving at

the home, the officers were informed by appellant’s cousin, Calvin Gainey,




4 The first names of Officers Shaw, Redanauer, and Flynn are not indicated in
the suppression hearing transcript.


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that appellant was located in        the upstairs    bedroom.      (Id.   at 8.)

Detective Rivera remained downstairs while the other officers proceeded to

the second floor of the residence and subsequently found appellant hiding in

a bathroom adjacent to the upstairs bedroom.        (Id. at 8-10.)   During the

course of apprehending appellant, Officer Shaw observed a case of .22 caliber

ammunition in plain view on the top of the mattress in the upstairs bedroom.

(Id. at 9.)    Detective Rivera testified that after she went upstairs, she

observed “bullets on the bed, and bullets across from the bed inside of the

bedroom.” (Id. at 9, 14.) Detective Rivera further testified that the bed and

the mattress were “tilted” or positioned in such a way that she reasonably

believed that someone who posed a danger to their safety could be hiding

behind it. (Id. at 9, 17.) As a result, Detective Rivera and Officer Shaw briefly

lifted up the mattress to see if anyone was underneath it and discovered a

loaded black handgun and three bullets between the mattress and the box

spring. (Id. at 9, 17, 28.)

      Here, it is evident that the officers’ brief inspection under appellant’s

bedroom mattress was “conducted to protect the[ir] safety,” Harrell, 65 A.3d

at 435, and was not “lengthy or unduly disruptive.” Witman, 750 A.2d at

336. Detective Rivera “articulate[d] specific facts” at the suppression hearing,

based on the information available to her at the time of the sweep, including

the presence of multiple rounds of ammunition in plain view in the bedroom

suggesting a firearm was nearby, “to justify a reasonable fear for the safety



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of [her fellow] police officers[.]” Hall, 199 A.3d at 959. Moreover, the sweep

“target[e]d only those areas where a person could reasonably be expected to

hide” – in this instance, under the shifted bedroom mattress. Witman, 750

A.2d at 336.    Nor is the suppression court’s finding that someone could

potentially conceal themselves under a shifted mattress, as Detective Rivera’s

testimony at the suppression hearing suggests, entirely unreasonable. As the

suppression court reasoned:

            THE COURT: I’m not thinking in terms of [a person]
            hiding between a mattress and box spring. That
            would be pretty silly.

            I’m saying if the mattress is ajar -- you have a box
            spring, you’ve got a mattress. It usually goes on top
            of it.

            If I walk into a room and I see it like this, well, is it
            reasonable for me to assume if I’m looking at it that
            maybe somebody is hiding underneath here and you
            walk over and lift it up and say, “Oh, there’s a gun”?

            Because believe it or not, I’ve actually played
            hide-and-seek with my kids in the past. And I’ve
            actually pulled the mattress off the box spring a little
            bit to secrete myself. Not in between the mattress
            and the box spring. I’m using the mattress almost
            like a roof on a fort.

Notes of testimony, 11/2/17 at 36.

      Based on the foregoing, we find that the suppression court’s factual

findings are supported by the record and the court’s legal conclusion that the

firearm and ammunition were lawfully seized pursuant to a constitutionally




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permissible protective sweep is correct. Accordingly, we discern no error on

the part of the suppression court in denying appellant’s motion to suppress.5

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/4/19




5 Appellant raises multiple alternative arguments in support of his claim that
the suppression court erred in denying his suppression motion. Specifically,
appellant contends that the search was not justified under the more relaxed
rules governing searches and seizures that are applied to probationers; and
that “there was no independent source” for the firearm and bullets recovered,
“nor would they have been inevitably discovered.” (Appellant’s brief at 12, 14
(extraneous capitalization omitted).) Because we have determined that the
suppression court properly denied appellant’s suppression motion on the basis
that the firearm and other physical evidence was lawfully seized pursuant to
the protective sweep doctrine, we need not consider these alternative theories
for affirming the suppression court’s order.


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