J-S02045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY BELL                               :
                                               :
                       Appellant               :   No. 3055 EDA 2016

           Appeal from the Judgment of Sentence September 6, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009324-2014


BEFORE:      BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 28, 2018

        Appellant Anthony Bell appeals from the judgment of sentence imposed

after the trial court found him guilty of possessing with intent to deliver a

controlled substance1 (PWID), possession of firearm prohibited,2 and firearms

not to be carried without a license.3 Appellant claims that the trial court erred

in denying his motion to suppress a firearm discovered in his mailbox during

a warrantless search. We affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).

2   18 Pa.C.S. § 6105.

3   18 Pa.C.S. § 6106.
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       The trial court summarized the evidence presented at the suppression

hearing as follows:

       Philadelphia Police Officer, Joel Jean, testified that at
       approximately 7:45 a.m., on the morning of April 16, 2014, he
       was on routine patrol with his partner when they responded to a
       radio call of gun shots in the vicinity of the 6300 block of Allman
       Street in the City of Philadelphia. Officer Jean described the scene
       as a residential area with a day care center on the corner.

       On arriving, they were flagged down by [Appellant], who reported
       that he lived at the end of the block and that his car had been
       vandalized while parked in the middle of the block. While talking
       to him, Officer Jean received another radio call advising him that
       a 911 caller reported seeing [Appellant] firing a gun just prior to
       his arrival. [Appellant] was identified by his clothing and the fact
       that he was talking to the officers when the call came in.

       Officer Jean then observed fired shell casings on the ground,[4]
       and based on his concern for the safety of the neighborhood, he
       immediately began to search the area for a firearm. Finding none
       in the immediate vicinity he went to [Appellant’s] apartment
       building, and on looking only into the mailbox assigned to
       [Appellant], discovered a gun in it. Officer Jean[] testified that the
       mailbox was mounted on the outside wall of the apartment, was
       not locked or otherwise secured, and that he gained access by
       simply opening the lid and looking inside. Rather than removing
       the gun, he left it in place and secured the area for further
       investigation.

       Philadelphia Police Detective, Richard Antonini, testified that,
       based on the reports of a gun fired and the discovery of a gun in
       a mailbox, he obtained a search warrant for both [Appellant]’s
       mailbox and residence. He included [Appellant]’s residence in the
       warrant for the purpose of searching for additional ammunition
       and proof of residence linking [Appellant] to the gun. As a result
       of his search, Detective Antonini recovered .40 caliber ammunition
       from [Appellant]’s apartment[,] which matched the caliber of the

____________________________________________


4Police officers recovered three fired cartridge casings from the street. N.T.,
9/16/16, at 36.



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         gun recovered, as well as the fired shell casings he recovered from
         the street.[5]

Trial Ct. Op., 5/1/17, at 2-4 (record citations omitted).

         The suppression hearing transcript also reveals that police officers at

65th and Upland Streets first reported hearing gunshots north of their

position. N.T., 9/6/16, at 9, 15, 17. Officer Jean and his partner, Officer

Robin Song, were at the police station when they received the report. Officers

Jean and Song drove from the station and past 65th and Upland Streets. Id.

at 18-19. They encountered Appellant at the 6300 block of Allman Street,

approximately three or four blocks past the intersection of 65th and Upland

Streets. Id. Additionally, there was no indication that Appellant was taken

into custody or handcuffed at the time when the officers received the tip

identifying Appellant as the shooter or while Officer Jean was searching for

the weapon. See id. at 25 (indicating that Officer Song was “still talking” to

Appellant while Officer Jean looked for the gun). Officer Jean testified that

when he discovered the firearm, Appellant was “feet” from the mailbox. Id.

at 14. Appellant was taken into custody after the discovery of the gun. Id.

at 32.

         A criminal complaint was filed the following day, and the Commonwealth

filed a criminal information on August 25, 2014. Appellant filed an omnibus

pretrial motion, asserting, inter alia, that “[t]he searches and seizures were

____________________________________________


5 The detective also discovered twenty-four packets of heroin underneath
Appellant’s mattress.

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conducted without a [s]earch [w]arrant and there existed no circumstances

warranting the application of any recognized exception to the [s]earch

[w]arrant requirement[.]” Omnibus Pretrial Mot., 10/8/14, at 2.

      The trial court convened a suppression hearing on September 6, 2016.

Appellant’s counsel asserted that absent probable cause and a warrant, the

search of Appellant’s mailbox was unconstitutional. See N.T., 9/6/16, at 4-5.

Following testimony from Officer Jean and Detective Antonini, the trial court

denied Appellant’s motion to suppress.

      Appellant immediately proceeded to a stipulated nonjury trial. The trial

court found Appellant guilty of PWID, person prohibited from carrying a

firearm, and carrying a firearm without a license, and immediately thereafter

sentenced him to a negotiated aggregate sentence of three-and-one-half to

ten years’ imprisonment.

      Appellant timely appealed the September 6, 2016 judgment of sentence

and complied with the trial court’s order to file and serve a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The trial court filed a responsive

opinion concluding that “sufficient exigent circumstances existed for Officer

Jean to conduct a limited search of the area to secure [Appellant’s] gun.” Trial

Ct. Op. at 7. The court further noted that the officer’s “intrusion into [mailbox]

was minimal, as he merely lifted the unsecured lid to look inside.” Id.




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       Appellant presents the following question on appeal: “Whether the court

improperly denied the motion to suppress physical evidence after an illegal

search and seizure?” Appellant’s Brief at 5.

       Appellant contends that the trial court erred in two respects.       First,

Appellant argues that the police lacked reasonable suspicion or probable cause

to open Appellant’s mailbox. Id. at 8, 10. Second, Appellant argues that the

Commonwealth failed to establish exigent circumstances warranting the

intrusion into his mailbox. Id. at 8, 11. Assuming, without deciding, 6 that

Appellant possessed a reasonable expectation of privacy in his mailbox, we

discern no merit to Appellant’s arguments.

       The principles governing our review are as follows:

       Our analysis . . . begins with the presumption that where a motion
       to suppress has been filed, the burden is on the Commonwealth
       to establish by a preponderance of the evidence that the
       challenged evidence is admissible. If the trial court denies the
       motion, we must determine whether the record supports the trial
       court’s factual findings and whether the legal conclusions drawn
       therefrom are free from error. In so doing, we may consider only
       the evidence of the prosecution 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 record supports the findings
       of the suppression court, we are bound by those facts and may
       reverse only if the court erred in reaching its legal conclusions
       based upon the facts.
____________________________________________


6 The concurrence concludes that Appellant lacked a reasonable expectation
of privacy in the mailbox. Notwithstanding the concurrence’s scholarly
research, this issue is not properly before this Court. See Commonwealth
v. Enimpah, 106 A.3d 695, 702 (Pa. 2014) (holding that the Commonwealth
bears the initial burden of placing a defendant’s reasonable expectation of
privacy at issue). Moreover, the concurrence arrives at its conclusion without
the benefit of focused arguments from the parties.

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Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014)

(citation omitted).

       The law of search and seizure remains focused on the delicate
       balance of protecting the right of citizens to be free from
       unreasonable searches and seizures and protecting the safety of
       our citizens and police officers by allowing police to make limited
       intrusions on citizens while investigating crime.        It is well
       established that probable cause alone will not support a
       warrantless search or arrest in a residence unless some exception
       to the warrant requirement is also present. Absent consent or
       exigent circumstances, private homes may not be constitutionally
       entered to conduct a search or to effectuate an arrest without a
       warrant, even where probable cause exists.

Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa. 2013) (citations,

emphasis, and some punctuation omitted).

       Appellant first argues that probable cause was lacking because he was

“lawfully on the street” and “flagged the officer down” for assistance.

Appellant’s Brief at 10. Appellant notes “[t]here was no information who had

called in the ‘flash information’ and how reliable it was.”7       Id.   Appellant

appears to analogize the present case to the “man with a gun” cases in which

officers detain an individual based on an uncorroborated anonymous tip. See

id.; cf. Commonwealth v. Mackey, 177 A.3d 221, 231-32 (Pa. Super. 2017)

(holding that the seizure of an individual was not supported by an

uncorroborated anonymous tip stating that the individual, who was identified

by gender, race, and clothing, was on a specific bus and had a gun).

____________________________________________


7“A flash information is based on a report from the initial officers to investigate
the scene of a crime and is broadcast to other police units in the district.”
Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super. 1986).

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      When reviewing the trial court’s probable cause determination, we are

mindful that probable cause will be found to exist

      where the facts and circumstances within the officer’s knowledge
      are sufficient to warrant a prudent individual in believing that an
      offense was committed and that the defendant has committed it.
      In determining whether probable cause exists, we must consider
      the totality of the circumstances as they appeared to the arresting
      officer. Additionally, the evidence required to establish probable
      cause for a warrantless search must be more than a mere
      suspicion or a good faith belief on the part of the police officer.

Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa. Super. 2011) (citations

and some punctuation omitted).

      Instantly, the record established that Officers Jean and Song were

responding to a report of gunshots made by fellow officers involved in a

separate incident at 65th and Upland Streets. N.T., 9/6/16, at 15, 18-19.

Officers Jean and Song proceeded from the station house, drove past the

officers who initially reported hearing the gunshots, and then encountered

Appellant approximately three or four blocks north of 65th and Upland Streets.

Id. at 17-19. Appellant initiated contact with the officers by flagging them

down and asserting that his car was vandalized. Id. at 9-10. While Appellant

was talking to the officers, the officers received an anonymous tip that the

person the officers were speaking to, i.e., Appellant, had fired a handgun

before the officers arrived. Id. at 10-11. Officer Jean began investigating the

shooting and observed fired cartridge casings on the street where they were

talking with Appellant about the vandalism. Id. at 11.




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      Based on this record, there was ample basis for the trial court to find

probable cause that Appellant had fired the shots heard by the officers. See

Griffin, 24 A.3d at 1042.        Moreover, there was independent corroborative

evidence establishing that gunshots were fired and that Appellant, who was

standing near several fired cartridge casings, was responsible for the

gunshots. Therefore, Appellant’s assertion that he was unlawfully detained

without probable cause lacks merit. Thus, Appellant’s first argument warrants

no relief.

      Second, Appellant argues that the Commonwealth failed to establish

exigent circumstances justifying Officer Jean’s opening of the mailbox.

Appellant focuses on Officer’s Jean’s testimony that there was a daycare

center and “the last thing [he] wanted is a child to find that hand gun before

we do.” See N.T., 9/16/16, at 12. Appellant asserts:

      The firearm was in a closed mailbox not exposed to the public. It
      is . . . incredible to believe that children would open a closed
      mailbox on the street while the police were obtaining a warrant.
      There were pursuant to the police officer’s testimony at least two
      officers securing the area where the Appellant was located.

Appellant’s Brief at 11.

      With respect to exigent circumstances,

             [v]arious factors need to be taken into account to assess the
             presence of exigent circumstances; for example: (1) the
             gravity of the offense; (2) whether the suspect is reasonably
             believed to be armed; (3) whether there is a clear showing
             of probable cause; (4) whether there is a 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


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         is peaceable; (7) the timing of the entry; (8) whether there
         is hot pursuit of a fleeing felon; (9) whether there is a
         likelihood that evidence will be destroyed if police take the
         time to obtain a warrant; and (10) whether there is a danger
         to police or other persons inside or outside of the dwelling
         to require immediate and swift action.

      Essentially, the exigent circumstances exception involves
      balancing the needs of law enforcement against individual liberties
      and/or rights. Some factors will outweigh others in a given case.

Johnson, 68 A.3d at 937 (citations and some punctuation omitted).              All

factors “will not exist in every particular case, but that does not render the

situation non-exigent.” Commonwealth v. Stewart, 740 A.2d at 712, 718

(Pa. Super. 1999).

      “[P]olice bear a heavy burden when attempting to demonstrate an

urgent need that might justify warrantless searches or arrests.” Id. (citation

omitted).    Furthermore, “the Commonwealth must present clear and

convincing evidence that the circumstances surrounding the opportunity to

search were truly exigent, and that the exigency was in no way attributable

to the decision by police to forego seeking a warrant.” Commonwealth v.

Rowe, 984 A.2d 524, 526 (Pa. Super. 2009) (citation omitted).

      Instantly,   the   trial   court   concluded   that   there   were   exigent

circumstances based on the following factors:

      [Officer Jean] arrived on the scene shortly after the reported
      shooting and had reason to believe [Appellant] was the shooter.
      In initiating the search, Officer Jean testified that he was
      concerned for “the safety of the public, also there was a daycare
      on the corner. So the last thing we wanted is a child to find that
      handgun be ore we do.” (N.T., 9/16/16[, at 12]) Being unable to
      locate the gun in the area of the shell casings, it was reasonable
      for him to search in the vicinity of [Appellant’s] residence. The

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      Court recognizes that although [Appellant] has reasonable
      expectation of privacy in his own mailbox, it is not absolute and is
      subject to exigent circumstances. Furthermore, Officer Jean
      limited his search to [Appellant’s] mailbox and his intrusion into it
      was minimal, as he merely lifted the unsecured lid to look inside.
      On discovering the gun he immediately secured it from further
      intrusion, pending obtaining a search warrant.

Trial Ct. Op. at 7.

      Following our review, we agree with the trial court’s conclusion that

exigent circumstances existed under the unique facts of this case. There was

clear probable cause that Appellant engaged in conduct that threatened public

safety, namely, firing several shots in a residential area with a daycare center

nearby. The incident and subsequent search occurred around 7:45 a.m. on

April 16, 2014, which was a weekday. Although Officer Jean and Officer Song

began investigating the shooting after receiving the anonymous tip, there was

no evidence that Appellant was handcuffed. Additionally, the trial court heard

testimony that Appellant was associated with the mailbox and was within

“feet” of the mailbox. Lastly, as the trial court noted, the officer’s intrusion

was limited and peaceful.

      Thus, having examined the totality of the circumstances of this case, we

conclude that the trial court properly found that the investigation and search

was reasonable and that exigent circumstances justified the opening of

Appellant’s mailbox.    Accordingly, no relief is due on Appellant’s second

argument.

      Judgment of sentence affirmed.



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Judge Bowes joins the memorandum.

Judge Ransom files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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