J-S53030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

PADRAIC COUGHLIN

                         Appellee                  No. 3492 EDA 2016


                 Appeal from the Order October 11, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0011139-2015


BEFORE: BENDER, P.J.E., OLSON, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 15, 2017

      Appellant, the Commonwealth of Pennsylvania (Commonwealth),

appeals from an order entered on October 11, 2016 in the Criminal Division

of the Court of Common Pleas of Philadelphia County that suppressed

evidence recovered following a warrantless search of the residence of

Padraic Coughlin (Appellee), as well as statements made by Appellee

following his arrest. We affirm.

      On August 30, 2015, following reports that he discharged a firearm at

his Philadelphia residence, Appellee was arrested and charged with carrying

a firearm without a license in violation of the Uniform Firearms Act (VUFA),

18 Pa.C.S.A. § 6106, possessing instruments of crime (PIC), 18 Pa.C.S.A.

§ 907, and recklessly endangering another person, 18 Pa.C.S.A. § 2705.

The VUFA charge was later quashed. Thereafter, Appellee filed a motion to
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suppress and the trial court convened a hearing on October 11, 2016. The

court summarized the evidenced adduced at the hearing as follows:

     According to the testimony of Commonwealth witness Police
     Officer Paul Sulock, on August 30, 2015 at approximately 9:20
     p.m., Officer Sulock together with his partner [] responded to a
     radio call for a possible shooting [along] East Madison Street in
     the City and County of Philadelphia. As Officer Sulock pulled up
     to [] East Madison Street, two white females and a younger
     white male flagged them down. One of the white females,
     Jessica Cupps, told Officer Sulock that there was a white male,
     dressed in all black, by the name of Pat, appearing “crazy,” and
     shooting an assault rifle in the back of the property.

     Officer Sulock and Officer Rebstock[] went to the back of Ms.
     Cupps’ property [along] East Madison Street to obtain access to
     [the] East Madison Street [property] where the alleged shooting
     was reported to have occurred. When Officer Sulock got to the
     back of Ms. Cupps’ property, he observed a seven (7) foot high
     cement wall separating the back yard[s of adjoining East
     Madison Street properties.] While Officer Rebstock gave Officer
     Sulock protective cover, Officer Sulock straddled the wall, shone
     a flashlight into the back yard of [Appellee’s] East Madison
     Street [residence], noticed bullet casings, and [Appellee] came
     out of the door at a fast pace. Officer Sulock drew his weapon,
     ordered [Appellee] to the ground, [Appellee] immediately
     complied, and Officer Sulock promptly placed [Appellee] in
     handcuffs.    Officer Sulock noted that [Appellee] was “very
     compliant” with all of his commands. Once [Appellee] was on
     the ground in handcuffs, Officer Sulock[] began to question
     [Appellee] without advising him of his [rights pursuant to
     Miranda v. Arizona 384 U.S. 436 (1966). Specifically, Officer
     Sulock asked Appellee if he had a gun on his person and whether
     anyone else was inside the property. Appellee responded that
     he did not have a weapon but was inconsistent as to whether
     others were present inside his residence. Initially, Appellee
     stated there was someone inside the residence. When asked
     whether there was an injured party inside the home, Appellee
     responded that there was no one in the house. Appellee then
     indicated that there might be someone inside the home.] At this
     point, there were approximately four (4) or five (5) officers on
     the scene while Officer Sulock stood in the back yard. At no

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      point did Officer Sulock hear or see evidence that anyone else
      was in [Appellee’s] home. Notwithstanding the above, Officer
      Sulock[, together with his partner and at least two other officers,
      entered the property, swept the first and second floors, and
      recovered a black assault rifle from the second floor.]

Trial Court Opinion, 1/6/17, at 1-2 (internal citations and footnotes omitted).

      At the conclusion of the suppression hearing, the trial court granted

Appellee’s motion to suppress. Specifically, the court concluded that the rifle

recovered from Appellee’s residence should be suppressed since the

Commonwealth failed to show that exigent circumstances justified a

warrantless entry into the home. See id. at 7. The court also determined

that any statements made by Appellee after Officer Sulock placed him in

handcuffs were inadmissible because Appellee did not receive Miranda

warnings before questioning commenced. Id.

      The Commonwealth filed a timely interlocutory appeal on November

11, 2016, certifying that the ruling issued by the trial court would terminate

or substantially handicap the prosecution in this case.     Notice of Appeal,

11/8/16; Pa.R.A.P. 311(d) (permitting interlocutory Commonwealth appeal

in criminal cases where notice certifies that challenged order will terminate

or   substantially   handicap   prosecution).    On   the   same    date,   the

Commonwealth also filed a concise statement of errors complained of on

appeal. See Pa.R.A.P. 1925(b). This matter is now ripe for our review.

      In its brief, the Commonwealth raises the following issue for our

review:
      Did the [trial] court err by suppressing a firearm found during a
      protective sweep where – after speaking to a next door neighbor


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      who said [Appellee] was shooting an assault rifle – police
      observed fired bullet casings, saw [Appellee] quickly leave the
      premises, and upon asking [Appellee] if anyone was inside,
      received inconsistent answers.

Commonwealth’s Brief at 3.

        The   Commonwealth        challenges   an     order    suppressing     evidence

recovered during a warrantless search of Appellee’s home. Its position on

appeal is that the trial court erred as a matter of law in failing to find that

exigent circumstances justified Officer Sulock’s entry into Appellee’s home

without a warrant. According to the Commonwealth, there were urgent and

immediate grounds for officers to enter Appellee’s residence without a

warrant because of the potential need to neutralize an ongoing threat or

render emergency aide to an injured party.              To support its claim, the

Commonwealth points out that reliable eyewitnesses informed officers that

Appellee was “crazy” and had discharged an assault rifle, police observed

multiple   shell   casings   in   Appellee’s   back    yard,    and   Appellee      made

inconsistent remarks about whether other individuals were present in his

home.

      “Once    a   motion    to   suppress     evidence       has   been   filed,   it   is

the Commonwealth’s burden to prove, by a preponderance of the evidence,

that the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016)

(citation omitted).   Our standard of review in addressing a challenge to a

trial court’s order granting a suppression motion is whether the factual

findings are supported by the record and whether the legal conclusions

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drawn from those facts are correct. See Commonwealth v. Champney,

161 A.3d 265, 271 (Pa. Super. 2017) (citation omitted). “Where the [trial]

court’s factual findings are supported by the record, we are bound by these

findings and may reverse only if the [trial] court’s legal conclusions are

erroneous.”   Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super.

2016) (citation omitted).    “[O]ur scope of review is limited to the factual

findings and legal conclusions of the [trial] court.” In re L.J., 79 A.3d 1073,

1080 (Pa. 2013) (citation omitted) (noting that evidence elicited at trial falls

outside the scope of review).     “When the Commonwealth appeals from a

suppression order, we . . . consider only the evidence from the defendant’s

witnesses together with the evidence of the prosecution that, when read in

the context of the entire record, remains uncontradicted.” Commonwealth

v. Young, 162 A.3d 524, 527 (Pa. Super. 2017) (citation omitted).

      The substantive scope of search and seizure law begins with the

Fourth Amendment, which provides that:

      The right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures,
      shall not be violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and the persons
      or things to be seized.

U.S. Const. amend. IV.

      Applying this provision to a warrantless police entry into a home, this

Court has previously said:




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     It is axiomatic that the “physical entry of the home is the chief
     evil against which the wording of the Fourth Amendment is
     directed.” Welsh v. Wisconsin, 466 U.S. 740 (1984) (quoting
     United States v. United States District Court, 407 U.S. 297
     (1972)). Accordingly, the Supreme Court of the United States
     has long recognized that “searches and seizures inside a home
     without a warrant are presumptively unreasonable.” [Welsh,
     466 U.S.] at 749 (quoting Payton v. New York, 445 U.S. 573,
     586 (1980)).

     Accordingly,   “[a]bsent   probable    cause   and    exigent
     circumstances, the entry of a home without a warrant is
     prohibited under the Fourth Amendment.” Commonwealth v.
     Roland, 637 A.2d 269, 270 (Pa. 1994). In determining whether
     exigent circumstances exist, the following factors are to be
     considered:

       (1) the gravity of the offense, (2) whether the suspect is
       reasonably believed to be armed, (3) whether there is
       above and beyond a clear showing of probable cause, (4)
       whether there is strong reason to believe that the suspect is
       within the premises being entered, (5) whether there is a
       likelihood that the suspect will escape if not swiftly
       apprehended, (6) whether the entry was peaceable, and (7)
       the time of the entry, i.e., whether it was made at night.
       These factors are to be balanced against one another in
       determining whether the warrantless intrusion was justified.

     Id. at 270–271 (quoting Commonwealth v. Wagner, 406 A.2d
     1026, 1031 (Pa. 1979)). We may also consider “whether there
     is hot pursuit of a fleeing felon, a likelihood that evidence will be
     destroyed if police take the time to obtain a warrant, or a danger
     to police or other persons inside or outside the dwelling.” Id. at
     271. When considering these factors, we must remain cognizant
     that “police bear a heavy burden when attempting to
     demonstrate an urgent need that might justify warrantless
     searches or arrests.”        Id. (quoting Welsh, 466 U.S. at
     749-750).

Commonwealth v. Wadell, 61 A.3d 198, 210-211 (Pa. Super. 2012).

     Based upon our review of the certified record and pertinent case law,

including the factors that should be considered in determining whether

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exigent circumstances are present, we conclude that the trial court did not

err in granting Appellee’s motion to suppress the rifle recovered during a

warrantless search of his residence. In particular, we conclude, under the

circumstances of this case, that the trial court acted within its discretion in

refusing to credit Officer Sulock’s plausible, but unsubstantiated, contention

that he entered Appellee’s home because he believed that an injured person

may have been present.

      Here, the record reveals that Officer Sulock and his partner responded

to a radio call indicating that shots had been fired along East Madison Street.

Three eyewitnesses met the officers as they arrived on scene. One of the

witnesses, a white female, stated that a lone white male named Pat, who

was dressed in black, had fired an assault rifle in the rear of his property.

Upon entering the backyard of the East Madison Street property, Officer

Sulock observed several shell casings on the ground. Shortly thereafter, an

individual matching the description of the suspect emerged from the

residence. Officer Sulock promptly subdued the individual and placed him in

handcuffs. Officer Sulock entered the premises without a warrant after the

suspect gave inconsistent responses when asked whether anyone else was

present inside the home.

      Application of the relevant factors listed above leads us to conclude

that the Commonwealth failed to demonstrate that exigent circumstances

were present.   Although the crimes under investigation were serious and


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there were substantial grounds to believe that Appellee was armed

previously, the facts show that Appellee was under custodial arrest before

officers entered his residence without a warrant.            Thus, while there may

have been ample grounds for finding probable cause to initiate a search, we

need not consider whether the suspect remained within the premises or

whether there was a likelihood of escape.             In addition, although the facts

reveal that entry was accomplished in a peaceful manner, it was undertaken

at night, which militates against the Commonwealth’s claim of exigent

circumstances.       See Commonwealth v. Berkheimer, 57 A.3d 171,

178-179 (Pa. Super. 2013).

       In support of Officer Sulock’s actions, the Commonwealth emphasizes

Appellee’s inconsistent responses to questions concerning the presence of

third parties within his residence.            We are not persuaded, however, that

Appellee’s statements compel a finding of exigent circumstances.                 The

officers here responded to a call stating that an individual had discharged a

firearm in his backyard. They did not receive a report that the suspect had

targeted others, that injured persons were at the scene, or that anyone was

present within the suspect’s home. Upon arrival, the officers observed shell

casings1 on the ground outside Appellee’s residence but did not observe


____________________________________________


1 The presence of the shell casings supports the claims made by the
eyewitnesses but do not provide compelling grounds to conclude that an
(Footnote Continued Next Page)


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blood, hear screams, or see anyone inside Appellee’s home. On the record

before us, we hold that the trial court acted within its discretion in refusing

to credit Officer Sulock’s contention that he entered Appellee’s residence

without a warrant in order to render emergency assistance to an injured

individual.   Accordingly, we affirm the order granting Appellee’s motion to

suppress.

      Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.

      Bender, P.J.E., joins this memorandum.

      Ford Elliott, P.J.E., files a dissenting memorandum statement.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




(Footnote Continued) _______________________

injured party remained inside Appellee’s home, given all of the surrounding
circumstances in this case.



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