J-A01026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TERRENCE JOHNSON

                            Appellant                  No. 3115 EDA 2014


             Appeal from the Judgment of Sentence June 13, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014286-2012


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                             FILED FEBRUARY 19, 2016

        Terrence Johnson appeals from the judgment of sentence entered on

June 13, 2014, in the Court of Common Pleas of Philadelphia County

following a stipulated bench trial. Johnson was found guilty of possession

with intent to deliver, knowing and intentional possession, possession of a

small amount of marijuana, and possession of drug paraphernalia. 1            He

received an aggregate sentence of five to twelve years’ incarceration.        In

this timely appeal, Johnson claims the trial court erred in failing to suppress

physical evidence seized from his residence after the police forcibly entered

it without a warrant.       Following a thorough review of the certified record,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(30), (a)(16), (a)(31), and (a)(32), respectively.
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submissions by the parties, and relevant law, we reverse, vacate the

judgment of sentence and remand for a new trial.

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

suppress evidence is well settled:

       We may consider only the Commonwealth's evidence 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 factual findings of the trial court, we are
       bound by those facts and may reverse only if the legal
       conclusions drawn therefrom are in error. An appellate court, of
       course, is not bound by the suppression court's conclusions of
       law.

Commonwealth v. Williams, 125 A.3d 425, 431-32 (Pa. Super. 2015)

(citation omitted).

       We quote the underlying facts of this matter from the trial court

opinion.

       On August 10, 2012, Philadelphia police officer Matthew Lally
       was in full uniform on routine patrol in a marked vehicle. At
       6:00 pm, Officer Lally responded to a radio call for a “founded”
       or confirmed, domestic incident for a person with a gun in the
       area of Wayne Avenue and Windrim Street in Philadelphia. The
       complainant provided the following description to a police officer
       who interviewed the complainant in person: black male with a
       beard, wearing a black shirt, black pants, and carrying a
       firearm.[2]  Three to five minutes after receiving the radio
____________________________________________


2
  While the trial court’s description is essentially correct, we note Officer
Lally provided two slightly different descriptions of the flash information he
received: (1) “a black male, was wearing all black, with a beard, was
involved in a domestic assault and he was carrying a gun.” N.T. Suppression
Hearing, 11/22/2013, at 7, and (2) “black male, beard, black shirt, black
pants, black shoes.” Id., at 38.



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     dispatch, Officer Lally observed [Johnson] sitting on the steps of
     4550 Wayne Avenue, which is one and one-half blocks from the
     location of where the “founded” domestic incident occurred.
     Officer Lally believed that [Johnson] matched the “flash”
     information contained in the radio call because of [Johnson’s]
     clothing and his proximity to the “founded” call.

     Because he believed that [Johnson] met the “flash” information,
     Officer Lally made a u-turn with his vehicle and pulled up in front
     of [Johnson] without using either the police lights or sirens on
     the vehicle. As soon as he pulled up to [Johnson] and while he
     was still in the vehicle, Officer Lally requested [Johnson] to
     “come here.” At this point, Officer Lally did not brandish his
     firearm or otherwise threaten [Johnson]. In response to this
     request, [Johnson] stood up, grabbed his waistband and then
     ran quickly into the house at 4550 Wayne Avenue. [Johnson]
     closed the front door that he entered. Officer Lally and his
     partner then exited their vehicle and attempted to enter the
     house through the front door that [Johnson] entered, but the
     door was locked. Unable to force open the front door, the
     officers then ran to the rear of the property and entered the
     property by way of an unlocked, outside door of a one-room
     apartment. Once they left that room, they entered a common
     hallway of the apartment building. As they walked down the
     hallway, Officer Lally observed [Johnson] going into Apartment
     A1 on the first floor.

     Upon observing the police officers, [Johnson] closed and locked
     the door to Apartment A1. Officer Lally forced open the door to
     Apartment A1.       Upon entering the apartment, Lally placed
     [Johnson] into custody. After he placed [Johnson] in custody,
     Officer Lally observed on the floor a Pennsylvania state
     identification card with [Johnson’s] name on it and a photograph
     of [Johnson]. In the same room, Officer Lally also observed in
     plain view (1) a clear sandwich bag on the floor that contained a
     green leafy substance that he immediately recognized as
     marijuana based upon his training and experience, and (2) a gun
     cleaning kit on a television stand. After conducting a criminal
     records check, Officer Lally learned that [Johnson] had an open
     warrant for absconding. [Johnson] was held for identification by




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        the complaining witness in the domestic incident, but he was
        cleared by the complaining witness.[3]

        Officer Lally has worked as a police officer in the area that
        [Johnson] was arrested for the last 9 years. He considers this
        area as a high crime area known for narcotics activity and
        arrests for illegal firearms possession. He has personally made
        several VUFA arrests in the area and also is aware of numerous
        shootings in the area. Additionally, in his experience as a police
        officer, Officer Lally typically recovers firearms from the waist
        area. Thus, [Johnson’s] grabbing of his waistband led Officer
        Lally to believe that [Johnson] was carrying a firearm even
        though he did not observe a firearm.

        [Johnson’s] counsel called a defense witness who denied that
        [Johnson] ran into the house or grabbed his waistband as he was
        being pursued by the officers. The defense witness had a prior
        conviction for crimen falsi.       Based upon both witnesses’
        demeanor and manner of testifying and the defense witness’[s]
        prior conviction for crimen falsi, the trial court chose to credit
        Officer Lally’s testimony and discredit the defense witness’s
        testimony.

        [Johnson’s] house was searched after Detective Salone obtained
        a search warrant.     Upon execution of the search warrant,
        Detective Salone recovered, inter alia, a Ziploc bag containing
        408 grams of crack cocaine, 99 packets of heroin, additional
        baggies with marijuana, one packet of crack cocaine, a digital
        scale, and unused narcotics packaging.

Trial Court Opinion, 4/7/2015, at 1-3 (citations to record omitted).

        The essential question presented for our review is whether the forcible

entry, without a warrant, into Johnson’s apartment was constitutional.4         If
____________________________________________


3
    No gun was found in the apartment.
4
  Specifically, Johnson’s three      arguments are: (1) Did the trial court err in
determining the initial contact      between Johnson and the police was a mere
encounter, (2) Did the trial         court err in determining the police had a
reasonable suspicion to stop         Johnson, and (3) did the trial court err in
(Footnote Continued Next Page)


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the entry was improper, then the trial court erred in failing to suppress the

evidence obtained therein.         Initially, we note, “Absent probable cause and

exigent circumstances, warrantless searched and seizures in a private home

violate both the Fourth Amendment and Article 1 § 8 of the Pennsylvania

Constitution.”   Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa.

Super. 2014).

      Further,

      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.... [A]bsent
      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. Santiago, 736 A.2d 624, 631 (Pa. Super.
      1999)      (citations  omitted;   emphasis     in  original).   In
      Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (1994),
      our Supreme Court explained that “[i]n determining whether
      exigent circumstances exist, a number of factors are to be
      considered”, such as,

          (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



                       _______________________
(Footnote Continued)

determining the police had probable cause to arrest Johnson and forcibly
enter his residence without a warrant. See Appellant’s Brief, at 7.



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           another in determining whether the warrantless intrusion
           was justified.[5]

        Other factors may also be taken into account, such as 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
        danger to police or other persons inside or outside the dwelling.
        Nevertheless, police bear a heavy burden when attempting to
        demonstrate an urgent need that might justify warrantless
        searches or arrests.

        Id. at 600, 637 A.2d at 270-71 (quotations and citations
        omitted).

Id., at 793 (Pa. Super. 2014).

        Here, based upon the evidence presented at the suppression hearing,

the trial court reasoned the initial contact between the police and Johnson

was a mere encounter.          A mere encounter does not require any level of

suspicion or carry any official compulsion to stop or respond.                See

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014).                Although the

police did suspect Johnson to have been involved in the domestic

disturbance reported over the police radio, their initial contact with Johnson,

a request to step over to the police car, did not convey a message that

compliance with the request was required.        Id.   Accordingly, Johnson was

within his rights to ignore the request to speak with the police. Therefore,

we agree with the trial court that the initial contact was a mere encounter.

        However, when a person, in a high crime area, such as was described

by Officer Lally, flees without apparent cause from the police, the police may
____________________________________________


5
    These are known as the Roland factors.



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briefly detain that person to conduct a Terry6 search. See In re D.M., 781

A.2d 1161, 1164 (Pa. 2001) (“[I]t is evident that unprovoked flight in a high

crimes area is sufficient to create a reasonable suspicion to justify a Terry

stop under the Fourth Amendment.”) A Terry stop allows the police, under

the totality of the circumstances and with reasonable belief, to search a

person to determine whether that person is armed.          This represents an

investigative detention. Pursuant to D.M., the unprovoked flight in a high

crime area provides the reasonable suspicion of criminal activity needed to

conduct an investigative detention.

        Nonetheless, the trial court commented, “In response to Officer Lally’s

request for [Johnson] to speak to him, [Johnson] engaged in unprovoked

flight, which, as discussed below, gives rise to probable cause to arrest

him.”     Trial Court Opinion, 4/7/2015, at 5 (emphasis added).        D.M. and

subsequent case law specifically limit police response to unprovoked flight to

conducting a brief investigative detention, not to arrest.       The trial court’s

conclusion that Johnson’s retreat into his apartment building gave rise to

probable cause to arrest him is, accordingly, an error of law.

        The trial court also determined that the totality of the circumstances

gave the police probable cause to believe Johnson was armed. In support,

the trial court cited the following cases:


____________________________________________


6
    Terry v. Ohio, 392 U.S. 1 (1981).



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      Commonwealth v. Taggart, 997 A.2d 1189 (Pa. Super. Ct.
      2010) (an officer’s observation of an individual carrying a
      handgun on public streets in the city of Philadelphia gives rise to
      probable cause for an arrest); and Commonwealth v.
      Bowmaster, 101 A.3d 789 (Pa. Super. Ct. 2014) (stating in
      dicta that (1) a reliable tip from a known source, and (2) the
      belief that defendant was in possession of a firearm provided
      probable cause).

Trial Court Opinion, at 7.

      We find both of these cases are distinguishable and neither provides

support for a warrantless forced entry into a residence.     In Taggart, the

police actually observed the defendant in possession of a gun.       Here, the

police specifically denied seeing Johnson possess a gun. Rather, the police

had a reasonable suspicion Johnson was armed, which would have allowed

them to conduct a Terry stop, but not to arrest him. In Bowmaster, the

tip from the reliable source was what provided the reasonable belief the

defendant possessed a stolen weapon.       Additionally, in Bowmaster, not

only did the tipster affirmatively state he had seen the stolen gun, there was

no question about the identity of the suspect. As stated in dicta, this gave

rise to probable cause to obtain a search warrant for the residence, not to

arrest Bowmaster.     Significantly, Bowmaster held that the information

possessed by the police was insufficient to support a warrantless nighttime

entry into Bowmaster’s residence.

      Beyond the lack of probable cause, the police also lacked exigent

circumstances. Initially, we remember that the “police bear a heavy burden




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when attempting to demonstrate an urgent need that might justify

warrantless searches or arrests.”   Bowmaster, supra.

     Accordingly, we examine the Roland factors.       (1) The nature of the

crime. The flash report indicated only that the alleged victim was assaulted

in some manner and that the perpetrator had a gun. There is no indication

the perpetrator used the gun in the assault or threatened the alleged victim

with the gun.    (2) Reasonable belief the suspect is armed.      The police

possessed a reasonable suspicion that Johnson was armed based upon the

flash report and his actions in adjusting his waist band. (3) Was there an

above and beyond a clear showing of probable cause.            The evidence

presented at the suppression hearing would have allowed the police to

conduct a Terry stop and to conduct an investigative detention to determine

if the alleged victim could identify Johnson as her assailant. This does not

equate to above and beyond a clear showing of probable cause either to

arrest Johnson or to search his residence.   (4) Was there a strong reason to

believe Johnson was in the premises. The police witnessed Johnson entering

the apartment. They absolutely knew he was within the premises. (5) Was

there a likelihood Johnson would escape.       The trial court merely stated

Johnson could have escaped, but set forth no facts to support that

determination. The evidence demonstrated the police were standing outside

the only door out of the apartment. The evidence showed no reason why

someone could not have stood outside to make sure Johnson did not climb

out a window. (6) Was the entry peaceable. The entry was not peaceable.

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Officer Lally testified he did not knock on the door and request entry. He did

not explain why they wanted to talk to Johnson. Officer Lally simply forced

his way into the apartment, breaking through a locked door. (7) Was the

entry at night. The entry was affected in the evening.

        Pursuant to Bowmaster, the trial court also considered these: (1) was

there hot pursuit of a fleeing felon, and (2) was there a likelihood evidence

would be destroyed. The trial court noted the officers were in hot pursuit.

However, as noted above, there was no clear indication a felony had been

committed. The evidence presented at the suppression hearing indicated no

probable cause to arrest Johnson, but only reasonable suspicion to conduct a

Terry stop.     Next, the trial court stated, without reference to the record,

that the suspected firearm was likely to be hidden or destroyed.7 Whether

the evidence might be hidden is not a factor to be considered; proper

consideration is given to whether the evidence might be destroyed.        See

Bowmaster, supra. The record is silent as to how Johnson might have

destroyed the suspected handgun while in his room.

        The trial court also noted concern for the safety of others. However,

there was no evidence the perpetrator of the alleged assault threatened the

victim with the gun.       Johnson did not threaten the police in any manner,




____________________________________________


7
    This is all hypothetical, as there was no gun.



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much less with a gun. There was no evidence of any other person within the

premises who may have been in danger, had Johnson been armed.

       The evidence viewed in the light most favorable to the Commonwealth

indicates that the police had reasonable suspicion to briefly detain Johnson

to see if the alleged victim of the assault could identify him as her assailant

and to frisk him to see if he was armed. The police had no probable cause

to arrest Johnson. We also conclude there were no exigent circumstances to

overcome the constitutional requirement to obtain a search warrant.

Accordingly, we do not believe the evidence is sufficient to meet the heavy

burden of demonstrating an urgent need to conduct a warrantless forced

entry in Johnson’s residence. As such, the trial court erred in denying

Johnson’s motion to suppress evidence. All of the evidence obtained from

Johnson’s apartment was fruit of the poisonous tree and was inadmissible. 8

Because the evidence obtained from Johnson’s apartment was the only

evidence against him, judgment of sentence against Johnson cannot stand.

       Judgment of sentence vacated.               Case remanded for a new trial.

Jurisdiction relinquished.

____________________________________________


8
  “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, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).”
Commonwealth v. Loughnane, ___ A.3d ___, 2015 PA Super 245, at *7
(11/23/2015).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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