J-S31021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNETH MURPHY                             :
                                               :
                        Appellant              :   No. 1973 EDA 2017

              Appeal from the Judgment of Sentence May 19, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009094-2014


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JUNE 12, 2018

        Kenneth Murphy appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after he was convicted of one

count each of carrying a firearm without a license,1 carrying a firearm on the

streets of Philadelphia,2 possessing an instrument of crime (PIC),3 and two

counts each of terroristic threats4 and simple assault.5 After careful review,

we affirm.


____________________________________________


1   18 Pa.C.S. § 6106.

2   18 Pa.C.S. § 6108.

3   18 Pa.C.S. § 907.

4   18 Pa.C.S. § 2706(a)(1).

5   18 Pa.C.S. § 2701(a).
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      Around 9:00 p.m. on July 22, 2014, Philadelphia Police Sergeant Juan

Rivera was on routine patrol with his partner, Officer Michael Sidebotham.

They responded to a police radio call regarding a person with a gun on the

6400 block of North 15th Street. Upon arrival at the location, the officers met

two young males who told them that Murphy, who at that time was sitting on

the patio of a nearby row home, had gotten into an altercation with them over

a parking spot. The young males told Officer Sidebotham that Murphy had

produced a firearm from a white towel and “said something to the effect that

I’m about to move too.” N.T. Suppression Hearing, 5/19/16, at 32. They also

told Officer Sidebotham that Murphy had taken the towel and gun back into

his house after the incident. Id. at 33.

      At that point, Sergeant Rivera approached Murphy on the porch,

identified himself as a police officer, and told Murphy that he had received a

call for a person with a gun and he was trying to ascertain whether or not

Murphy had been involved in the argument. Sergeant Rivera testified that

Murphy was sweaty and seemed agitated with his questions. Murphy told the

sergeant that he had been involved in a disturbance with his neighbors,

however, he did not have a gun on him. Id. at 24. Murphy also told the

sergeant that he was a retired Southeastern Pennsylvania Transit Authority

(SEPTA) police officer. Id. at 10-11. When Sergeant Rivera asked Murphy

for identification, Murphy told him he had some inside the house. Id at 11.

      Sergeant Rivera informed Murphy that for his own safety he needed to

go with Murphy inside the home to retrieve his identification.      Id. at 11.

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Sergeant Rivera testified that Murphy said, “no problem,” unlocked the door

and opened the door so they could enter the home. Id. at 11, 20. Sergeant

Rivera accompanied Murphy to the upstairs, front bedroom of the row home

where Murphy retrieved his identification from a dresser drawer; Officer

Sidebotham remained in the downstairs living room of the residence. Id. at

12. Officer Sidebotham testified that as the men were going upstairs, Murphy

“glanced toward the sofa to [Officer Sidebotham’s] left.” Id. at 33. Officer

Sidebotham then observed a white towel in plain view sitting on the couch;

once Sergeant Rivera and Murphy were upstairs, Officer Sidebotham retrieved

the white towel. Id. at 34. The towel was wrapped around a loaded, black

Smith & Wesson .38 revolver. Id. at 36. At that point, Officer Sidebotham

told Sergeant Rivera to handcuff Murphy; Murphy was placed under arrest.

Id. at 45-46.

       On December 11, 2014, Murphy filed a pre-trial motion to suppress,

alleging that the warrantless search of his residence and his arrest were illegal

and that the gun seized from the search of his row house should be

suppressed.     On May 19, 2016, the trial court held a suppression hearing

where Sergeant Rivera, Officer Sidebotham, and Murphy testified. The trial

judge6 denied Murphy’s motion to suppress, making the following findings of

fact and conclusions of law on the record:

____________________________________________


6 We note that the Honorable Giovanni Campbell presided over Murphy’s
suppression hearing, while the Honorable Glenn B. Bronson presided over
Murphy’s trial and sentencing.

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     The Commonwealth bears the burden by a preponderance of the
     evidence to prove that all police activity is lawful. I do find that
     both officer[s], Rivera and Officer Sidebotham[,] testified credibly
     in this case. I find that the defendant testified credibly for the
     most part, and that his testimony for the most part corroborates
     the material evidence of the Commonwealth.

     I find that the situation began as a mere encounter and quickly
     became a situation that had ample reasonable suspicion to stop
     and frisk the defendant although he was not.

     I do find that the defendant’s con[sent] for the officers going to
     the home was voluntary and unequivocal and it is consistent with
     his – which to identify himself to officers as a retired SEPTA police
     officer. And I find he probably thought it would make this all go
     away.

     I do not find that he was coerced into the residence.

     I do find that [there were] ample bas[e]s to conduct a safety frisk
     of the home that would have included inspection and the discovery
     of the towel since it was identified as contraband. But we need
     not rely on that.

     I do find that upon entering with consent and the defendant’s
     glancing towards the sofa and then the officer seeing a white towel
     assuming what was described by the complainant did provide
     probable cause to recover it lawfully in the reviewing area.

     This probable cause [is] established by a totality of the
     circumstances [that] are . . . not limited to[:] the radio call, the
     complainant’s report immediately before the sitting [sic] of the
     towel[] by both officers[, t]he defendant’s own conduct before
     going into the house, which included his evasive and . . . verbally
     aggressive behavior[,] the defendant’s glancing toward the towel
     once they were all inside the home. The coincidental presence of
     the white towel on the couch immediately after the complaint that
     included a report of the defendant going back into the house with
     a white towel that contained a gun.

     Therefore, the entry was lawful. The recovery is supported by
     probable cause and the motion to suppress is denied.

N.T. Suppression Hearing, 5/19/16, at 70-72.       Following a one-day bench

trial, Murphy was convicted of the above-stated offenses; he was sentenced


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on May 19, 2017, to an aggregate term of 6-23 months’ incarceration,

followed by a five-year probationary tail.       Murphy filed a timely notice of

appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.         Murphy raises the following two issues for our

consideration:

       (1)    Was not [the] evidence (a gun) unconstitutionally seized
              during a warrantless search of [Murphy’s] house where
              [Murphy] involuntarily consented to police entry into the
              house only because the officer said he would have to
              accompany [Murphy] into the house as [Murphy] was going
              to retrieve identification requested by the officer?

       (2)    As the gun seized from the house was not in plain view, did
              not the police need a warrant to open the white towel in
              order to ascertain whether a gun was secreted inside of the
              towel (notwithstanding the purported consent to enter)?

Appellant’s Brief, at 3.7

       Murphy argues he did not voluntarily consent to the officers entering his

home to accompany him to retrieve identification from an upstairs bedroom.

He also contends that even if the officers did lawfully enter his home, they

needed a warrant to search the towel that secreted the gun because the gun

was not in plain view. We disagree.



____________________________________________


7 When reviewing an order denying a motion to suppress evidence, we must
determine whether the trial court’s factual findings are supported by the
evidence of record. If the evidence supports the trial court’s findings, we are
bound by them and may reverse only if the legal conclusions drawn therefrom
are erroneous. Commonwealth v. Blair, 860 A.2d 567, 571 (Pa. Super.
2004).



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      “Both the United States and Pennsylvania Constitutions prohibit

unreasonable searches and seizures.” Commonwealth v. Garibay, 106 A.3d

136 (Pa. Super. 2013). “[A]s a general rule, a search warrant is required

before police may conduct any search. Absent the application of one of a few

clearly delineated exceptions, a warrantless search or seizure is presumptively

unreasonable.” Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super.

2013) (citations and quotation marks omitted). Voluntary consent is one such

exception.   Commonwealth v. Kemp, 961 A.2d 1247, 1260 (Pa. Super.

2008) (en banc). The voluntariness of consent is a question of fact that is

determined by looking at the totality of the circumstances. Commonwealth

v. Edwards, 735 A.2d 723, 725 (Pa. Super. 1999).

      Instantly, the trial court found Sergeant Rivera and Officer Sidebotham

credible. Commonwealth v. Slaton, 556 A.2d 1343, 1347 (Pa. Super. 1989)

(credibility findings are within sole province of trial court and will not be

disturbed on appeal).   Based on a totality of the circumstances, the court

concluded that Murphy was not coerced into his residence to retrieve his

identification, but rather that he voluntarily and unequivocally consented to

the officers entering his home.    Kemp, supra.     The record supports this

conclusion where Murphy unlocked the door for the officers to enter the

residence and testified that the officers did not show any signs of physical

force when they asked him to retrieve his identification. N.T. Suppression

Hearing, 5/19/16, at 50-51. Moreover, in order to ensure his safety, it was

reasonable for Sergeant Rivera to accompany Murphy into his residence to

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retrieve his identification. See Commonwealth v. Johnson, 68 A.3d 930

(Pa. Super. 2013) (law of search and seizure remains focused on delicate

balance of protecting right of citizens to be free from unreasonable searches

and seizures and protecting safety of citizens and police officers by allowing

police to make limited intrusions on citizens while investigating crime).

Accordingly, we conclude that the police lawfully entered Murphy’s home

without a warrant.

      With regard to the warrantless search of the white towel sitting on the

couch in Murphy’s home, the suppression judge determined that the item had

been lawfully seized under the plain view exception to the warrant

requirement. We agree.

      The plain view doctrine provides that:

      [E]vidence in plain view of the police can be seized without a
      warrant. The plain view doctrine applies if: 1) police did not
      violate U.S. Const. amend. IV during the course of their arrival at
      the location where they viewed the item in question; 2) the item
      was not obscured and could be seen plainly from that location; 3)
      the incriminating nature of the item was readily apparent; and 4)
      police had the lawful right to access the item.

Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012)

(citations omitted).   A police officer has probable cause to believe that an

object is incriminating where “the facts available to the officer would ‘warrant

a man of reasonable caution in the belief,’ that certain items may be

contraband or stolen property or useful as evidence of a crime[.]”

Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super. 1997). The



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probable cause standard does not require the officer’s belief to be “correct or

more likely true than false.” Id.

      Based on the young men’s account that Murphy had just threatened

them with a gun that was wrapped in a white towel and that Murphy had taken

the towel and gun back inside his home right before the officers arrived at the

scene, Officer Sidebotham had probable cause to believe that this white towel

was the same white towel that contained contraband in the earlier altercation.

Because: (1) the officers were lawfully in Murphy’s home; (2) the white towel

was not obscured and could be seen plainly from where Officer Sidebotham

was standing in the living room; (3) the incriminating nature of the item was

readily apparent because he had just received information that Murphy had

brandished a gun that was wrapped in a white towel; (4) and the officer had

the lawful right to access the item, it was properly seized under the plain view

doctrine. Anderson, supra.

      Because the trial court’s factual findings are supported by the evidence

of record, Blair, supra, we conclude that the trial court properly denied

Murphy’s suppression motion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




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