J-S44042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
              v.                           :
                                           :
ODELL EPPS,                                :
                                           :
                   Appellant               :           No. 1410 EDA 2015

               Appeal from the Judgment of Sentence May 1, 2015
              in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0005747-2014

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JUNE 28, 2016

        Odell Epps (“Epps”) appeals from the judgment of sentence imposed

following his conviction of possession of a controlled substance (heroin), and

possession with intent to manufacture or deliver (heroin).1 We affirm.

        In its Opinion, the trial court set forth the relevant factual and

procedural background, which we adopt for purposes of this appeal.          See

Trial Court Opinion, 1/19/16, at 1-4.2

        On appeal, Epps raises the following question for our review:

        Whether the lower court abused its discretion in denying [Epps’s]
        Motion to Suppress Physical Evidence[] where police made [a]
        warrant[]less entry into [the] dwelling without probable cause
        and exigent circumstances, rendering all evidence observed and
        recovered as a result of the warrantless entry and subsequently

1
    See 35 P.S. §§ 780-113(a)(16), (30).

2
  With regard to the trial court’s reference to an “unknown substance” found
in two open bags in an upstairs bedroom, our review of the record discloses
no determination as to the nature of the substance. See Trial Court
Opinion, 1/19/16, at 4.
J-S44042-16


      executed tainted search warrant, fruit of the poisonous tree, and
      therefore, inadmissible[] under the Fourth Amendment of the
      United States Constitution and Article 1, Section 8 of the
      Pennsylvania State Constitution?

Brief for Appellant at 4.

      Epps contends that Officer Carl Diaz’s (“Officer Diaz”) stated reason for

entering 3018 N. 8th Street (hereinafter “the premises”), i.e., that someone

inside was shot and injured, did not give rise to reasonable suspicion,

probable cause or exigent circumstances. Id. at 18. Epps points out that

police had received similar anonymous calls on the two preceding days, with

negative results, and asserts that the anonymous call on the date in

question “was a mere pretext to justify a warrantless entry and search of the

[premises].” Id. Epps claims that the initial warrantless search and seizure,

which served as the basis for the issuance of a search warrant, violated

Epps’s constitutional rights under the United States Constitution and Article

1, Section 8 of the Pennsylvania State Constitution. Id. Epps argues that

all of the evidence recovered during the execution of the search warrant

constitutes fruit of the poisonous tree and should be declared inadmissible.

Id. Epps contends that the trial court abused its discretion in determining

that the issuing magistrate had a substantial basis for concluding that

probable cause existed. Id. at 21. Epps asserts that, when Officer Diaz and

Officer Jason Hernandez (“Officer Hernandez”) entered the premises and

conducted a search thereof, there was “no fair probability that they would

encounter a gunshot victim or any other indicia of crime, where [p]olice had


                                  -2-
J-S44042-16


responded to the same report of a possibly dead shooting victim the two

previous days, with negative results.”     Id. at 23.   Epps claims that the

police “were on another wild goose chase[,] and there was no evidence of a

shooting or other criminal activity observed by the [o]fficers before they

forced their way inside.”    Id. at 23-24.      Epps points to Officer Diaz’s

testimony that he heard a male voice before a visibly nervous Shavonna

Baker told Officer Diaz that she was alone in the premises, and argues that

this was “clearly insufficient corroborative evidence to support reasonable

suspicion, let alone probable cause[] to justify a warrant[]less entry and

search of the premises.”    Id. at 24.   Epps contends that police had no

credible or reliable independent evidence of drug activity to support the

issuance of a search warrant. Id. at 25-26. Epps asserts that the absence

of a credible source of information, independent of the illegal search and

seizure conducted by Officers Diaz and Hernandez, tainted the search

warrant, rendering all of the evidence recovered during its execution as fruit

of the poisonous tree. Id. at 26-27.

      The trial court set forth the relevant law, addressed Epps’s issue, and

concluded that both probable cause and exigent circumstances justified the

initial search of the premises. See Trial Court Opinion, 1/19/16, at 4-5, 5-7.

We agree with the sound reasoning of the trial court, which is supported by

the record, and affirm on this basis. See id.

      Judgment of sentence affirmed.



                                 -3-
J-S44042-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2016




                          -4-
                                                                                                                                                                    Circulated 05/25/2016 04:16 PM




                          IN THE COURT~OF
                                    _.,,,,!'' .. , COMMON PLEAS
                  FIRST JUDICIAL DISTRICT OF-PENNSYLVANIA
                      TRIAL DIVISION - CRIMINAL SECTION



COMMONWEALTH OF PENNSYLVANIA                                                                                                                        CP-51-CR-0005747-2014

                     v.                                                                                                                             1410 EDA 2015

              ODELL EPPS


                                                                          OPINION
                               ..................      P">   ..   ----,    ·-    .......       ,....           .        -            ...... ,._.,   •
                               ....,,      ,.J •    ...,;·~·v"""'""'      -.,,   .._,., ,.,. ....,..,,..,.,,       •·   ~t't".;..,   ,_.,..t,,. '-•
COVINGTON, J.                                                                      Opinion




                                                    II I I II lllll I I Ill Ill I IIII
                                                              7395105081
Procedural History

       On April 2, 2014, the Defendant was charged with Manufacture/Delivery/Possession with

intent to Manufacture or Deliver (PWID) (35 § 780-113 §§ A30), Conspiracy (18 § 903),
                                                                             _,,~~-""'   --
Possession of a Firearm Prohibited (18 § 6105 §§ Al) and Intentional Possession of a Controlled

Substance by a Person Not Registered (35 § 780-113 §§ A16). On October 2, 2015, Defendant's

Motion to Quash was granted in part, with respect to the charges of Conspiracy (18 § 903) and

Possession of a Firearm Prohibited (18 § 6105 §§ Al).
                                                                                                                                     ~
       On September 18, 2014, the Defendant's Motion to Suppress Evidence was heard and

denied. On October 2, 2015, the Defendant's Motion to Reconsider the Ruling on the Motion to

Quash was heard and denied.

       On February 11, 2015, Defendant was found guilty following a jury trial, of

 Manufacture/Delivery/Possession with intent to Manufacture or Deliver (PWID) (35 § 780-113

 §§ A30) and Intentional Possession of a Controlled Substance by a Person Not Registered (35 §
780-113 §§ A16. On March 1, 2015, the Defendant was sentenced to two to four years

incarceration followed by six years of state probation.

       On May 8, 2015, Defendant filed a timely Notice of Appeal of the Courts granting

Defendant's Motion to Suppress.



FactualHistory

       Police Officer Carl Diaz testified at a suppression hearing that he and his partner, Officer

Jason Hernandez, responded to a radio call-on April 2t 2014, around l la.m., in the area of 3018

North 8th Street in Philadelphia, Pennsylvania. N.T. 9/18/15 at 9-10. The radio call consisted of

an anonymous tip of a person with a gun and a person shot inside of the home at 3018 North 8th

Street, further stating there was possibly a male with a self-inflicted gun wound. Id. at 29. The

officers approached the home and Officer- Diaz knocked on the door but did not receive an

 answer. Id. at 15. After a second knock, Officer Diaz heard a male voice ask who was at the

 door. Id. Officer Diaz announced that it was the police and the male voice asked, "[t]he police?"

 Id. Officer Diaz responded, "[y ]es, the police". Id. A few seconds later before Officer Diaz

 knocked a third time, a young female, Shavonna Baker, opened the front door. Id. Ms. Baker

 appeared to be nervous. Id. Officer Diaz asked if anyone was hurt or shot inside the home. Id.

 Ms. Baker hesitantly replied no. Id. Officer Diaz then asked if anyone else was present in the

 home, and Ms. Baker denied the presence of any other persons in the home. Id. A few seconds

 later, Office Diaz saw a male, Defendant.Davenport, ~alk through the downstairs level of house,

 toward the rear. Id. Officer Diaz immediately summoned Defendant Davenport to the front door

 and asked if anyone was shot in the home and if anyone else was inside of the home. N.T.

 9/18/15 at 18-19. Mr. Davenport and Ms. Baker exchanged glances and Mr. Davenport



                                                   2
responded that no one was hurt and that no one else was inside the home. Id. Officer Diaz

informed Mr. Davenport and Ms. Baker t!ic:!the
                                      ..
                                               and his partner, Officer Hernandez would check
                                                        "•




the home to confirm that there are no injured persons inside. Id.

       The Officers instructed Mr. Davenport and Ms. Baker to sit down on the couch to speak

to them, but then heard footsteps coming from the upper level of the home. N.T. 9/18/15 at 19.

Officer Diaz could see the upstairs of thehome
                                        : ~--·
                                               from·:... where he was standing and observed a

male, Defendant Epps, quickly move from the middle room to the back room of the home. Id.

Officer Diaz informed his partner, Officer Hernandez, of his observation and proceeded upstairs,

where he smelled a pungent odor of marijuana. Id. at 22, 40. Once upstairs, Officer Diaz had

drawn his gun and requested that Defendant.Epps exit t~e back room with his hands up. Id. at 20.

Defendant Epps complied, and the Officers frisked Defendant Epps for weapons then instructed

 him to go downstairs. Id. at 20-21. Officer Diaz then turned around and observed another male,

 Defendant Davis, in the front bedroom, with a minor child. Id. at 21. Officer Diaz instructed

 Defendant Davis to exit the room with h,~s hands up. , ,_.Id. Defendant Davis was subsequently

 frisked for weapons and sent downstairs with the minor child. Id.

         Office Diaz proceeded to check the upper level of the home for additional people, safety

 threats, and injuries. Id. at 22-23. Office Diaz cleared all the rooms upstairs, but in the middle

 room he observed a scale on the window J.ill and a bla,~k plastic grocery bag containing plastic

 vials sitting on the floor near the window sill. Id. at 23-24. He further observed heroine

 paraphernalia on top of a dresser in the back room. Id. at 42-43. Officer Diaz then cleared the

  rest of the lower level of the home. Id. at 23. In the dining room, Officer Diaz saw a small, open

  box on top on the dining room table, whichcontained arproximately fifteen ( 15) or more plastic

  cylindrical vials of a green leafy substance. N. T. 9/18/15 at 23. Then the Officers conducted a pat



                                                   3
down of the Defendants. Id. Officer Hernandez recovered two cylinders containing a green leafy

substance and nine hundred and forty-eight U.S. Dollars ($948.00) from the hoodie pockets of

Defendant Epps. Id. at 47. The Officers placed the three defendants and Ms. Baker in handcuffs

while they called the Narcotics Strike Forc,~,Ad. at 23. ~,

       At approximately 6:30pm, on April 2, 2014, Officer Anne Rutherford of the Narcotics

Strike Force ("NSF") served and executed a signed and approved search warrant for the

residence at 3018 North 8th Street. Id. at 50-52. From the living room, the task force recovered a

box on the dining room table containing twenty-four (?4) clear cylinders containers with hydro

marijuana. Upstairs, in the middle room, NSF recovered the Driver's License of Defendant Epps,

two open bags with an unknown substance, later determined to be and a black shopping bag with

five (5) clear baggies knotted at the top containing heroine. N.T. 5/15/2014 at 14-15. NSF also

recovered unused packaging materials similar
                                       ...
                                             to the containers
                                                     -~.
                                                               and bags in which the alleged

 marijuana and alleged heroin was packed. N.T. 9/18/15 at 53-54.



 Standardof Review

        The applicable standard of review in.an
                                           ·.
                                                appeal from
                                             ,.,; .     ..:....
                                                                an order of suppression is well

 settled. The appellate court must ascertain whether the trial court's factual findings are

 supported by the record and whether the inferences and legal conclusions drawn from those facts

 are reasonable. Commonwealth v. Smith, 917 A.2d 848, 850 (Pa. Super. 2007). Furthermore, the

 appellate court is bound by the findings of fact of the suppression court, if the record supports

 those findings. Id. When the defendant appeals from a suppression order, the appellate court

 must follow "a clearly defined standard of review and consider only the evidence from the

  Commonwealth's witnesses together with the evidence of the defense that, when read in the



                                                      4
context of the entire record, remains uncontradicted."   Commonwealth v. Mack, 953 A.2d 587,

589 (PA Super 2008).



Statement of Errors:

Pursuant to the Defendant's 1925(b) Statement of Errors, the Defendant asserts one error on

appeal: the Trial Court abused its discretion denying appellant's Motion to Suppress Physical

Evidence where the was evidence obtain;d by a warrantless entry of a home without probable

cause or exigent circumstances and thus the evidence uncovered under the subsequently issued

warrant is fruit of the poisonous tree.



 Discussion

 I. The Motion To Suppress Was Properly Denied Because There Were Exigent
 Circumstances And ProbableCause To Justify Entry and Search Of The Home.

     Entry of a home without a warrant is prohibited under the Fourth Amendment, unless

 probable cause or exigent circumstances exist Commonwealth v. Roland, 63 7 A.2d 269 (Pa.

 1994). Factors to be considered in determining whether exigent circumstances for warrantless

 search exist are: the gravity of the offense, whether the suspect is reasonably believed to be

 armed, whether there is an above and beyond clear showing of probable cause, whether there is

 strong reason to believe the suspect is within premises being entered, whether there is likelihood

 that the suspect will escape if not swiftly apprehended, whether the entry was peaceable, and the

 time of the entry. Id. Factors that may be considered in determining whether exigent

  circumstances justified warrantless search are whether there is hot pursuit of fleeing felon,

  likelihood that evidence will be destroyed if police take time to obtain warrant, or danger to

  police or other persons inside or outside dwelling. Id. Probable cause exists if, at the moment of

                                                    5
the arrest or search, the facts and circumstances within the officer's knowledge and of which the

officer had reasonably trustworthy information were sufficient to warrant a prudent person in

believing that the person arrested had committed, or was committing an offense, or there was

contraband, weapons, or other evidence on the premises. Henry v. U.S., 361 U.S. 98 (1959).

       In the instant case, there is sufficient probable cause and exigent circumstances to justify

the police officers' entry and search of the home. The totality of the circumstances and an

evaluation of the factors, clearly demonstrate the officers had probable cause to believe that

people were in danger inside the property. The initial anonymous tip of a person being shot, a

person possessing a gun, and a possibly self-inflicted gunshot wound establish a gravely

dangerous scenario. The gravity of a crime involving a shooting is high. Information of a

possible shooting immediately demands police officers to exercise caution in investigating the

 safety of themselves and others, inside and outside the premises. The anonymous tip was

 reinforced by the circumstances of the officers' attempted investigation of the house. At first, a

 male voice answered through the closed front door, then after another knock, Ms. Baker

 answered the door, appearing nervous and hesitant to answer if anyone was shot inside the

 house. Although Ms. Baker denied any shooting inside the house, she also denied the presence

 of anyone else inside the property.

         The officers then observed a male walk by behind Ms. Baker. As the officers had already

 observed a male walk by, contradicting MsrBaker's statement, and had observed Ms. Baker

 acting nervous, it was reasonable for the officers to believe that Ms. Baker was herself in danger

 of specific harm from the unidentified armed man, and unable to answer truthfully. After the

  officers established the possibility of danger, they proceeded to make a peaceable entry, merely

  instructing Ms. Baker and Defendant Davenport to sit on the couch while they searched for any



                                                   6
possible danger. Given the extreme nature of the anonymous tip, the suspicious behavior at the

entrance to the property' and the misrepresentation by one of the occupants are sufficient

probable cause and exigent circumstances to justify the entry and search of the home.




Conclusion

       The Trial Court properly denied'"the Motion to Suppress Evidence. For the foregoing

reasons the Court's denial of the motion should be upheld.




                                                   7
