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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
CHRISTOPHER H. COZZALIO,                :         No. 1281 EDA 2015
                                        :
                         Appellant      :


            Appeal from the Judgment of Sentence, April 23, 2015,
               in the Court of Common Pleas of Chester County
              Criminal Division at No. CP-15-CR-0003113-2014


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 13, 2016

        Christopher H. Cozzalio appeals from the April 23, 2015 judgment of

sentence following his conviction of possession of marijuana.1 We affirm.

        The trial court provided the following relevant findings of fact and

conclusions of law:

             1.    On August 13, 2014, Officer Richard Barth and
                   Sergeant Matthew Deceder of the West
                   Whitefield   Township    Police   Department
                   responded to a 911 call regarding a domestic
                   disturbance at 215 Aberdeen Avenue, Exton,
                   Chester County.

             2.    The officer and the sergeant were not familiar
                   with the residents or the layout of the
                   apartment at that address. They knocked on
                   the front door and announced their presence.
                   They heard raised voices coming from inside
                   the residence and a female’s loud scream (one

1
    35 P.S. § 780-113(a)(31).
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                of the officers described the scream as
                “blood-curdling”).    The officer radioed for
                assistance and the sergeant forced open the
                front door by kicking it.

          3.    The officer and the sergeant saw a staircase
                leading up to the living space of the
                apartment. The defendant was standing at the
                top of the stairs and a female was standing in
                front of the defendant screaming for the
                defendant to let her go.

          4.    The defendant was instructed to “get down.”
                The defendant did not comply until the officers
                drew their weapons and again instructed the
                defendant to “get down.”

          5.    There were red marks on the female’s neck
                observed by both officers.

          6.    The male and female were separated.
                Officer Barth escorted the female, and the
                young child she was carrying, outside while
                Sergeant Deceder placed the defendant in
                handcuffs and had him sit on the living room
                couch.

          7.    Two minutes after the officer had called for
                back-up, Lieutenant Matthew Herkner of the
                West Whiteland Township Police Department
                arrived at the scene. The lieutenant saw the
                officer taking a statement from the “hysterical”
                female and was told that the sergeant was
                alone with the defendant in the apartment.

          8.    The lieutenant continued to the second floor
                apartment to assist Sergeant Deceder with the
                defendant.

          9.    The sergeant told the lieutenant that the other
                rooms in the apartment had not been checked.

          10.   The officers did not know whether there were
                or were not any other individuals in the


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                 apartment but had concerns for their safety
                 and felt vulnerable to attack from the adjacent
                 rooms while in the apartment with the
                 defendant who was detained and subsequently
                 arrested.

          11.    The bedroom was one of the rooms
                 immediately adjacent to the living room.

          12.    The lieutenant conducted a protective sweep of
                 the bedroom and saw what he recognized to
                 be marijuana and drug paraphernalia on a
                 table at the foot of the bed. The lieutenant
                 also saw a loaded, semi-automatic Glock 9mm
                 pistol on a shelf in the closet.

          13.    The gun was seized immediately for safety
                 reasons.   There are no criminal charges,
                 relating to the gun, pending against the
                 defendant.

          14.    The defendant was arrested and charged with
                 assault related to the domestic altercation and
                 possession of a controlled substance and drug
                 paraphernalia.

                            Conclusions of Law

          ....

          2.     When the sergeant handcuffed the defendant,
                 the sergeant deprived the defendant of his
                 physical freedom of action. Commonwealth
                 v. Medley, 531 Pa. 279, 612 A.2d 430 (1992).
                 The sergeant testified that his intention, at the
                 time he handcuffed the defendant, was to
                 detain him during the course of their
                 investigation of the domestic altercation.
                 Arguably, the defendant was under arrest at
                 the point he was handcuffed irrespective of the
                 sergeant’s intention. If that is the case, the
                 protective sweep was incident to arrest and
                 falls under the exception. It certainly was a
                 protective sweep of the “arrest scene” given


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                  the fact that the defendant was arrested before
                  the officers left the residence.

            3.    The officers were able to articulate their
                  suspicions and concerns for their safety
                  allowing them to perform a protective sweep of
                  the rooms adjacent to the living room where
                  they had the defendant detained.          The
                  situation was a violent, fluid scene.

Order of court, 11/5/14 at 1-2.      Appellant was also charged with three

counts of harassment and possession of marijuana.            On September 16,

2014, appellant filed a motion to suppress evidence seized from his

apartment, claiming that the search and seizure conducted incident to

appellant’s arrest was in violation of his rights under the United States and

Pennsylvania Constitutions. A hearing was held on October 21, 2014, and

the trial court denied appellant’s motion to suppress.

      On April 23, 2015, the day of the trial, the Commonwealth withdrew all

charges with the exception of possession of marijuana.        A bench trial was

held and the trial court found appellant guilty and imposed a fine of $200.

On April 24, 2015, appellant filed a post-sentence motion, which was denied

by the trial court. Appellant filed a notice of appeal on May 5, 2015. The

trial court ordered appellant to produce a concise statement of matters

complained of on appeal on May 7, 2015, pursuant to Pa.R.A.P. 1925(b),

with which appellant complied on May 27, 2015. The trial court has filed an

opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:



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            1.       Did the trial court err in denying defendant’s
                     Motion to Suppress because police officers had
                     no authority to conduct a “protective sweep”
                     throughout the various rooms of the
                     residence?

Appellant’s brief at 3.

      Our standard of review for challenges to the denial of a motion to

suppress 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. Where . . .
            the appeal of the determination of the suppression
            court turns on allegations of legal error, the
            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.

Commonwealth v. Best, 120 A.3d 329, 346 (Pa.Super. 2014), quoting

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), appeal

denied,       A.3d        (Pa. 2015) (citations omitted).

      Both the United States Constitution and the Pennsylvania Constitution

guarantee that individuals shall not be subject to unreasonable searches or



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seizures. See U.S. Const. Amend. IV; Pa. Const. Art. I, § 8. A search or

seizure conducted without a warrant is, under the Fourth Amendment and

Article I, Section 8, presumed to be unreasonable.       Commonwealth v.

McCree, 924 A.2d 621, 627 (Pa. 2007) (citations omitted).

      Evidence obtained as a result of an unlawful search is subject to the

fruit of the poisonous tree doctrine. The United States Supreme Court has

stated that any material, tangible, or verbal evidence “obtained either during

or as a direct result of an unlawful invasion” is inadmissible at trial. Wong

Sun v. United States, 371 U.S. 471, 485 (1963).

      The United States Supreme Court has recognized exceptions to the

warrant requirement, including a search conducted incident to a lawful

arrest, also known as a “protective sweep.”    Maryland v. Buie, 494 U.S.

325 (1990). In Buie, the Supreme Court held that, “the Fourth Amendment

would permit [a protective sweep] if the searching officer ‘possesse[d] a

reasonable belief based on “specific and articulable facts which, taken

together with the rational inferences of those facts, reasonably warrante[d]”

the officer in believing,’ that the area swept harbored an individual posing a

danger to the officer or others.” Id. at 327, quoting Michigan v. Long, 463

U.S. 1032, 1049-1050 (1983) (citations omitted).

      The Court established the following standard in which a protective

sweep without a warrant could take place without violating an individual’s

Fourth Amendment rights:



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           [A]s an incident to the arrest the officers could, as a
           precautionary matter and without probable cause or
           reasonable suspicion, look in closets and other
           spaces immediately adjoining the place of arrest
           from which an attack could be immediately launched.
           Beyond that, however, we hold that there must be
           articulable facts which, taken together with the
           rational inferences from those facts, would warrant a
           reasonably prudent officer in believing that the area
           to be swept harbors an individual posing a danger to
           those on the arrest scene.

Id. at 334 (footnotes omitted).

     Pennsylvania adopted the protective sweep exception to the warrant

requirement in Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001); see

also In re J.E., 937 A.2d 421, 425 (Pa. 2007) (stating that the protective

sweep search is limited to “ensure the safety of arresting officers”).   In

Taylor, our supreme court applied the same standard as Buie:

           To decide whether the facts justified a protective
           sweep, the reviewing court must consider all of the
           facts objectively and from the position of the
           reasonably prudent police officer.      Because the
           sweep in the present case extended beyond the area
           within the immediate vicinity of the arrest, there
           must be “articulable facts which, taken together with
           the rational inferences from those facts, would
           warrant a reasonably prudent officer in believing that
           the area to be swept harbors an individual posing a
           danger to those on the arrest scene.”

Id. at 1267-1268, citing Buie, 494 U.S. at 327, 334. The Taylor court also

made clear that “the scope of a protective sweep extends only to a visual

inspection of those places in which a person might be hiding and lasts no

longer than is necessary to dispel the fear of danger.” Taylor, 771 A.2d at



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1268 (citations omitted); see also Commonwealth v. Crouse, 729 A.2d

588, 598 (Pa.Super. 1999) (protective sweeps “cannot be used as a pretext

for an evidentiary search” and can only target “areas where a person could

reasonably be expected to hide”), appeal denied, 747 A.2d 364 (Pa. 1999).

     We also note that, “[i]f, while conducting a [protective sweep], the

officer should, as here, discover contraband other than weapons, he clearly

cannot be required to ignore the contraband, and the Fourth Amendment

does not require its suppression in such circumstances.” Commonwealth

v. Potts, 73 A.3d 1275, 1282 (Pa.Super. 2013), quoting Long, 463 U.S. at

1049-1050.     See also Commonwealth v. Witman, 750 A.2d 327, 336

(Pa.Super. 2000) (stating that evidence observed in plain view during a

protective sweep is admissible).

     In the case sub judice, appellant avers that the police did not conduct

a lawful protective sweep and that the police did not have the authority to

seize evidence discovered during the protective sweep. As noted supra, in

order for the police to conduct a protective sweep incident to arrest beyond

the immediate vicinity of the arrest, the police must be able to articulate

facts that would cause a reasonably prudent police officer to believe that

there was a danger to the officer’s safety on the premises.

     Here, the trial court found that the officers did not know if anyone else

was in the apartment and they had concerns for their safety.       (See trial

court findings of facts and conclusions of law, 11/5/14 at 2.) The officers



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were unfamiliar with appellant’s apartment, were unfamiliar with both

appellant and the female victim, and could not say for certain whether

anyone else was inside the apartment and, therefore, were justified in

conducting a protective sweep beyond the immediate vicinity of the arrest.

The record supports the trial court’s factual finding through Sergeant

Deceder’s following testimony:

           Q:    Can you articulate any facts which then [led]
                 you to conclude there was anyone else in the
                 apartment?

           A:    . . . I was [in] very close proximity to the
                 actual entryway doorway to the apartment,
                 therefore the majority of the apartment was
                 unavailable to me as far as viewing it. I could
                 see the kitchen. I could not tell if anyone was
                 there or not.

           Q:    Would it be fair to say you didn’t have any
                 reason to believe either there was or was not
                 anyone else in the apartment, right?

           A:    In my training I always assume there is [sic]
                 more people in a residence than there are, so I
                 do not -- I didn’t know who lived there before.
                 I’d never been to the residence before.

           Q:    . . . Is it correct that you didn’t have any
                 information that [led] you affirmatively to
                 conclude there was anybody else there?

           A:    I had no information whether there were or
                 wasn’t [sic].

Notes of testimony, 10/21/14 at 26-27.    Lieutenant Herkner also testified

that he “had no knowledge whether there was or was not [sic] any additional

people in there.”   (Id. at 34.)   The officers’ testimony provides ample


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support within the record that articulable facts existed that would cause a

reasonably prudent police officer to believe that an individual may be hiding

somewhere in the apartment.

      We therefore find that the protective sweep of appellant’s apartment

was in compliance with our supreme court’s decision in Taylor and that the

police were authorized to conduct a cursory search to determine whether

additional parties were in the apartment, and were also authorized to seize

any contraband that was visible in plain view.2

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2016




2
  In his motion to suppress and in his brief, appellant did not argue with
specificity whether, if the officers were justified in conducting a protective
sweep, any of the contraband seized was inadmissible because it was not in
plain view.


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