J-S86017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SEAN CASTAPHENY

                            Appellant                   No. 269 WDA 2016


             Appeal from the Judgment of Sentence January 28, 2016
                In the Court of Common Pleas of Cambria County
               Criminal Division at No(s): CP-11-CR-0001309-2015


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                             FILED MARCH 27, 2017

       Sean Castapheny appeals from the January 28, 2016 judgment of

sentence entered in the Cambria County Court of Common Pleas following

his conviction for firearms not to be carried without a license.1 We affirm.

       The trial court set forth the factual and procedural history of this

matter in its Pennsylvania Rule of Appellate Procedure 1925(a) Opinion,

which we adopt and incorporate herein.            See Background, Opinion in

Support of Order Pursuant to Pennsylvania Rule of Appellate Procedure

1925(a), 4/13/16, at 1-3 (“1925(a) Op.”).

       Castapheny raises the following issues on appeal:

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 6106(a)(1).
J-S86017-16


        Whether the pretrial court erred in denying [Castapheny’s]
        Motion to Suppress evidence? Specifically,

              a) Where the defendant had a protected,
              Fourth Amendment, reasonable expectation of
              privacy in a bedroom used exclusively by him;

              b) Where the initial warrantless entry into the
              bedroom was unlawful and the product of
              unlawful consent by a third party;

              c) Where no exigent circumstances justified
              the officer’s warrantless intrusion through the
              kitchen to the rear bedroom in pursuit of the
              defendant;

              d) Where the officer’s   warrantless search by
              opening a book bag in    the rear bedroom was
              beyond the scope of      any consent and the
              contraband nature of      a book bag is not
              apparent.

Castapheny’s Br. at 6.

     In reviewing the denial of a suppression motion, we must determine

        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, as here, 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.




                                    -2-
J-S86017-16


Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted).        Further, “[a] defendant moving to

suppress evidence has the preliminary burden of establishing standing and a

legitimate expectation of privacy.”     Commonwealth v. Burton, 973 A.2d

428, 435 (Pa.Super. 2009). “[A] defendant accused of a possessory crime

who seeks to challenge a search and seizure . . . has automatic standing . . .

to maintain that challenge.”      Commonwealth v. Sell, 470 A.2d 457, 468

(Pa. 1983) (internal quotation marks omitted).       However, to prevail on a

motion to suppress, the defendant must still separately demonstrate that he

had a personal privacy interest in the area searched or effects seized, “and

that such interest was ‘actual, societally sanctioned as reasonable, and

justifiable.’    Such a legitimate expectation of privacy is absent where an

owner or possessor meaningfully abdicates his control, ownership or

possessory interest.”      Commonwealth v. Black, 758 A.2d 1253, 1257

(Pa.Super. 2000) (quoting Commonwealth v. Hawkins, 718 A.2d 265,

267 (Pa. 1998)) (internal citation and emphasis omitted).

       In his first three issues, Castapheny challenges the search of the rear

bedroom.        The trial court, applying the appropriate legal standard to the

evidence presented at the suppression hearing, found that Castapheny did

not have a reasonable expectation of privacy in the room and denied his




                                       -3-
J-S86017-16


motion to suppress on that ground.2              We agree with and adopt the trial

court’s reasoning, including that Castapheny was no more than a casual

visitor to the apartment who, despite staying there occasionally, had no right

to exclude others from the room in question. 1925(a) Op. at 4-7. Because

Castapheny has failed to establish a reasonable expectation of privacy in the

rear bedroom, we need not address his remaining contentions stemming

from the police entry into that room.3

       In his last issue, Castapheny argues that the police officer’s search of

a book bag located in the rear bedroom was unlawful “for (1) lack of

reasonable suspicion or probable cause to follow Mr. Castapheny through the

kitchen into the rear bedroom in the first instance[4] and (2) as beyond the

scope of the consent given by the lessor of the premises.” Castapheny’s Br.

at 17. He also argues that the contraband nature of the book bag, which

was later found to contain a firearm, was not apparent at the time of the

search.
____________________________________________


       2
        Because Castapheny was charged with possessory offenses, he has
automatic standing to challenge the search and seizure at issue in this
matter.
       3
        We also agree with and adopt the trial court’s conclusion that the
named tenant on the lease had the authority to and did consent to a search
of the apartment. 1925(a) Op. at 9-10.
       4
       We decline to address Castapheny’s argument that the officer lacked
reasonable suspicion or probable cause to follow him into the bedroom
because, as discussed above, Castapheny did not have a reasonable
expectation of privacy in the room.



                                           -4-
J-S86017-16


      As the trial court correctly observed, “a criminal defendant has no

privacy expectation in property that he has abandoned.” Commonwealth

v. Barnette, 760 A.2d 1166, 1170 (Pa.Super. 2000). This Court has held:

         Abandonment is primarily a question of intent, and intent
         may be inferred from words spoken, acts done, and other
         objective facts. All relevant circumstances existing at the
         time of the alleged abandonment should be considered.
         The issue is not abandonment in the strict property-right
         sense but whether the person prejudiced by the search
         had voluntarily discarded, left behind, or otherwise
         relinquished his interest in the property in question so that
         he could no longer retain a reasonable expectation of
         privacy with regard to it at the time of the search.

Id. at 1170–71 (emphasis in original) (quoting Commonwealth v. Clark,

746 A.2d 1128, 1133-34 (Pa.Super. 2000)).

      At the suppression hearing, Officer William Slisz, who conducted the

search, testified as follows:

         Q. Okay. And during that search did you find a bookbag?

         A. Yes.

         Q. And did you open the bookbag?

         A. Yes.

         Q. Before you opened it did you ask whether it belonged to
         anybody?

         A. Yes.

         Q. Did you ask Mr. Castapheny whether it belonged to
         him?

         A. Originally when he came out of the back room he didn’t
         have that black bookbag on anymore, so I asked if that
         was his bookbag in there, and he said no.

         Q. I’m sorry. So when you asked him if it was his bookbag
         or not that was prior to the consent search?

                                     -5-
J-S86017-16


          A. Yes.

          Q. But to be clear, he said the bookbag was not his?

          A. Yes.

          Q. And then did you search the bookbag?

          A. Yes.

N.T.,   10/14/15,      at    41-42.      Because      Castapheny    specifically   denied

ownership of the book bag, and thus abandoned it, he had no reasonable

expectation    of   privacy     with   regard    to    the   bag   during   the    search.

Commonwealth v. Dowds, 761 A.2d 1125, 1131 (Pa. 2000) (“Where, as

here, an individual’s disclaimer of ownership is not the product of improper

police conduct and clearly indicates [his] intention, we can perceive no basis

for treating it differently than an act from which an intention to abandon

may be inferred.”).

        Accordingly,    we    conclude    that   the    trial   court   properly   denied

Castapheny’s motion to suppress the evidence seized during the search.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2017




                                           -6-
1-                                                                                                           Circulated 03/02/2017 02:29 PM




                             IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
                                                   CRIMINAL DIVISION

                        COMMONWEALTH OF PENNSYLVANIA:                                    Trial Court No. 1309 - 2015

                                     vs.                                                 Superior Court No. 269 WDA 2016

                        SEAN DARRELL CASTAPHENY,

           .-  --   ('!".)

         ·:-
                    t.n      (/) c!t.                   Defendant.
           .:··~    a-.      ~~
       ~            x:       :31-
                             .::, :z                 OPINION IN SUPPORT OF ORDER PURSUANT TO
          --        cc
                             ·-·'5               PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925{a)
      -.
      ~-            M
     .......

     . -1
                             :- ~~ CREANY, S.J., April
                                  .'.!)
                                                                    \3 ,    2016.    Pursuant to Pennsylvania Rule of Appellate
      - I               Pro¢,ure Rule 1925(a), the suppression court submits the following Opinion in Support of
                              (     '
                        Order dated October 14, 2015 and filed for record on October 19, 2015:

                                                                             BACKGROUND
                                          On May 18, 2015, police officers for the City of Johnstown responded to a reported
                        burglary in progress where two African American males were seen climbing through a window
                        at 512 Daniel Street, an apartment in Johnstown, Pennsylvania. AFFIDAVIT OF PROBABLE
                        CAUSE FILED o MAY 18, 2015 ["AFFIDAVIT"], pg. 1,                     ,r,r 1-2.   One male reportedly carried a
                        black book bag. Id. at pg. 1,         ,r 2.
                                          Patrolman William Slisz     arrived at the apartment and observed through the window a
                        white male and two African American males, who matched the reported descriptions, including
                        one African American male wearing a black book bag. Id. at pg. 1,                        ,r 3.   After the police
                        officers knocked on the apartment door, the later-identified tenant of the apartment, Jason
                        Locher, opened it. Id. at pg. 1,              ,r,r 4-5.   Meanwhile, Patrolman Slisz observed the African
                        American male carrying the black book bag, later-identified as Defendant, exit the visible room
                        to a back room. Id. Patrolman Slisz followed Defendant to the back room and observed a
                        semi-automatic handgun and the black book bag on top of the bed. Id. Patrolman Slisz was
                        familiar with Defendant and knew he was convicted of a felony Robbery last year.                               Id.
Patrolman Slisz detained Defendant and asked him if he owned the black book bag, which
Defendant denied. Id.
           Patrolman Slisz advised Locher that they were there because of a reported burglary in
progress and that he observed a firearm lying on the bed in the back room. Id. at pg. 1,                            1 6.
Locher denied knowing anything about the firearm, but stated that Defendant had stayed in the
back room the night before. Id. Locher recalled that before he could answer his apartment
door, he witnessed Defendant wearing a black book bag along with another African American
male' climbing through the window. Id. at pgs. 1-2,               16.    At Patrolman Slisz's request, Locher
consented to a search of his apartment and signed a "Consent to Search" form. Id. at pg. 2, 1 7.
Patrolman Slisz then searched the black book bag located on the bed in the back room and
found a fully loaded .38 caliber revolver wrapped in at-shirt.                 Id. Patrolman Slisz seized the
.38 caliber revolver from the black book bag as well as the loaded semi-automatic 9mm
handgun from on top of the bed. Id.
           As Patrolman Slisz transported Defendant from one police cruiser to another, he
observed a blue stamp bag fall from his person, which prompted a strip search of Defendant.
Id. at pg. 2,     1   8. This search revealed on Defendant's person: 18 grams of suspected crack
cocaine; approximately 20 individually packaged small crack rocks; six small baggie comers
containing an unknown brown material; and a silver digital scale. Id. at pg. 2,                           1   10.   All
collected evidence tested field positive. Id. at pg. 2,          1 13.
           As a result of the above-referenced events and seizures, Defendant was charged with the
following six counts:
           (1) Manufactured, Delivered, and/or Possessed with the Intent to Manufacture or
                Deliver a Schedule I Controlled Substance, Heroin (Felony), 35 P.S. § 780-
                113(a)(30);
           (2) Manufactured, Delivered, and/or Possessed with the Intent to Manufacture or
               Deliver a Schedule II Controlled Substance, Cocaine (Felony), 35 P.S. § 780-
               113(a)(30);
           (3) Person Not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms
               (Felony 2"d Degree), 18 PA. C.S.A. 6105(a)(l);
I
    This individual was later-identified as Antrione Hornbuckle, the co-defendant in this matter below.   AFFIDAVIT,
pg. I,  ,r 5.
                                                          2
        (4) Intentionally Possessed a Schedule I Controlled Substance, Heroin, by a
            Person Not Registered (Misdemeanor), 35 P.S. § 780-113(a)(16);
        (5) Intentionally Possessed a Schedule II Controlled Substance, Cocaine, by a
            Person Not Registered (Misdemeanor), 35 P.S. § 780-113(a)(l6); and
        (6) Firearms Not to be Carried Without a License (Felony 3rd Degree), 18 PA.
            C.S.A. 6106(a)(l).

CRJMI! AL I FORJV!ATI01 FILED FOR RECORD O AUG. 7, 2015.
        On September 2, 2015, Defendant filed a Motion to Suppress Physical Evidence to
suppress the items seized from Locher's apartment and from Defendant's person on May 18,
2015. MOTI01 FOR OMNIBUS PRE-TRIAL RELIEF FILED FOR RECORD O . SEP. 2, 2015, pgs. 3-8.
Defendant alleged the seizures were unconstitutional under the Fourth Amendment of the
United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution.   Id. at pg.
3. The suppression court conducted a Suppression Hearing on October 14, 2015 and denied
Defendant's Motion by an Order dated October 14, 2015 as filed for record on October 19,
2015.   See SUPPRESSIO,   HEARING NOTES OF TRA SCRIPT ["N.T."] (OCT. 14, 2015); ORDER
DATED OCT. 14, 2015.

        On December 23, 2015, the trial court held a non-jury trial before the Honorable
Norman A Krumenacker, III, and found Defendant not guilty on Counts 1 through 5 and guilty
on Count 6, supra. See NON-JURY TRIAL N.T. (DEC. 23, 2015); ORDERS DATED DEC. 23, 2015.
On January 28, 2016, the trial court sentenced Defendant to pay costs and a $200.00 fine as
well as to undergo state imprisonment for 30 months to 72 months. SE TENCE ORDER DA TED
JA . 28, 2016.   On February 8, 2016, Defendant filed a timely Notice of Appeal and the trial
court issued an Order directing Defendant to file a Concise Statement of Errors Complained of
on Appeal. NOTICE OF APPEAL AND ORDER DA TED FEB. 8, 2016.            Defendant filed a timely
Concise Statement on February 25, 2016.    STATEME T OF MATTERS COMPLAINT OF O APPEAL
PURSUANT TO PA. R.A.P. 1925 FILED FOR RECORD O FEB. 25, 2016 ['·CONCISE STATEME T"].


                                          DISCUSSION
        On appeal, Defendant challenges the suppression court's denial of Defendant's Motion
to Suppress Physical Evidence by alleging that Defendant had a reasonable expectation of

                                               3
privacy, Patrolman Slisz's initial warrantless entry and subsequent search of the black book bag
were unlawful, and Locher's consent to search was unlawful. Co CISE STATEMENT,         1 l(a)-(d).

(1) Standardof Review
        The Superior Court of Pennsylvania       has outlined the well-established    standard of
review for considering an order denying a suppression motion as follows:
        An appellate court 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, the appellate court is bound by those facts and may reverse only
        if the legal conclusions drawn therefrom are in error. However, it is also well
        settled that an appellate court is not bound by the suppression court's conclusions
        oflaw.

        With respect to factual findings, we are mindful that it is the sole province of the
        suppression court to weigh the credibility of the witnesses.            Further, the
        suppression court judge is entitled to believe all, part or none of the evidence
        presented. However, where the factual determinations made by the suppression
        court are not supported by the evidence, we may reject those findings. Only
        factual findings which are supported by the record are binding upon [the court].
Comm. v. Caple, 121 A.3d 511, 516-517 (Pa. Super. 2015) (citations omitted).         Additionally,
any "questions of the admission and exclusion of evidence are within the sound discretion of
the trial court and will not be reversed on appeal absent an abuse of discretion."      Id. at 517
(citing Comm. v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003)).      "In appeals from suppression
orders, our scope of review is limited to the evidence presented at the suppression hearing."    Id.
( citing In the Interest of L.J, 79 A.3d 1073, 1088-1089 (Pa. 2013)).


(2) Defendant'sExpectation of Privacy
        Defendant argues that he "had a protected, Fourth Amendment, reasonable expectation
of privacy in a bedroom used exclusively by him." CONCISE STATEME T,       1 l(a).
       The Fourth Amendment of the United States Constitution protects "[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures."   U.S. Co ST., AME o. IV; PA. CONST., ART. 1, § 8. This protection depends on
"whether the person who claims the protection of the Amendment has a legitimate expectation


                                                4
of privacy in the invaded place."          Comm. v. Caple, 121 A.3d 511, 517 (Pa. Super. 2015)
(citations omitted). Specifically:
        An expectation of privacy is present when the individual, by his conduct, exhibits
        an actual (subjective) expectation of privacy and that the subjective expectation is
        one that society is prepared to recognize as reasonable. The constitutional
        legitimacy of an expectation of privacy is not dependent on the subjective intent
        of the individual asserting the right but on whether the expectation is reasonable
        in light of all the surrounding circumstances. Additionally, a determination of
        whether an expectation of privacy is legitimate or reasonable entails a balancing
        of interests.
Id. (internal citations and quotation marks omitted).
        The Superior Court of Pennsylvania outlined the following factors when determining
whether a defendant has a legitimate expectation of privacy in another person's home:
        ( 1)   Possession of a key to the premises;
        (2)    Having unlimited access to the premises;
        (3)    Storing of clothing or other possessions on the premises;
        (4)    Involvement in illegal activities conducted on the premises;
        (5)    Ability to exclude other persons from the premises; and
        (6)    Expression of a subjective expectation of privacy in the premises.
Comm. v. Bostick, 958 A.2d 543, 553 (Pa. Super. 2008) (quoting Comm. v. Govens, 632 A.2d
1316, 1319 (Pa. Super. 1993) (citations omitted)).
        Specifically, a defendant who is more than a "casual visitor" to another's residence
"must demonstrate a significant and current interest in the searched premises in order to
establish an expectation of    privacy."   Id. at 552-553.   See e.g. id. at 556 (concluding   that the

defendant had a reasonable expectation of privacy where he stayed there on the day of the
arrest, stayed overnight on weekends, contributed to the household bills, received mail there,
ate meals there, had laundry done there on occasion, and had free entry into the residence)
(citations omitted); Comm. v. Davis, 743 A.2d 946, 950 (Pa. Super. 1999) (finding that an
unnamed lessee had a legitimate expectation of privacy where he carried a key to gain access
and kept his belongings, clothes, identification tag, and prescription medications).




                                                   5
           In this case, Mary Ann Daniels, a Johnstown Housing Authority employee and manager
of the Oakhurst Homes.i testified regarding the circumstances surrounding the apartment
located at 512 Daniel Street. SUPPRESSIO              HEARrNG N.T. (OCT. 14, 2015), pgs. 6-7, 11. For
example, Daniels testified that Jason Locher was the only named tenant on the lease and was
only permitted to have two keys to his residence, both of which were labeled "do not
duplicate."      Id. at pg. 7. Daniels further testified that Locher was not permitted to sublet the
apartment or to have overnight guests more than 14 days a year. Id. at pgs. 8-10 (quoting
COMMO WEALTH'S Ex. No. 1, "Residential Dwelling Lease," pg. 5, §§ K, L(d)). Daniels also
testified that Locher never requested approval for a visitor over 14 days.                     Id. at pg. 10.
Additionally, Daniels described the "back room" (where Defendant supposedly stayed) as a
"laundry facility" without a lock with barely enough space for a single bed. Id. at pgs. 10-11.
           Locher further testified that he kept his extra single bed (without linens) and old
television in the laundry room. Id. at Locher allowed Defendant to stay in the room without
paying rent, but there was no lock on the door and Defendant was not permitted to keep Locher
from using the room. Id. at pgs. 17-18.           Specifically, Locher stated, "if he would have told me
that [I could not use the room,] I would have looked at him and said 'it's my house, I'll do what
I want, like, go in any kind of room that I wanted."' Id. at pg. 18. Locher gave Defendant a
key to his apartment "a couple times," but not on May 18, 2015.              Id. at pgs. 17-18. Locher also
allowed at least two other individuals to stay in the "laundry room." Id. at pgs. 19-20.
           Additionally, although Locher admitted that Defendant had his permission to frequently

stay in the back room and kept items of clothing there, id. at pg. 21, the circumstances of this
incident contradict those statements.          For example, the burglary report, Patrolman Slisz, and
Locher all noted that Defendant was observed carrying a black book bag. AFFIDAVIT, pg. 1, ,i,i
1-6; SUPPRESSION HEARING N.T. (OCT. 14, 2015), pgs. 36-38.                   Based on these observations,
Defendant kept belongings on his person and not permanently in the back room.                       Yet, when
Patrolman Slisz asked Defendant about the black book bag while standing in the back room,
Defendant denied ownership ofit. AFFIDAVIT, pg. 1, 14; SUPPRESSIO                   HEARING N.T. (OCT. 14,
2015), pgs. 41-42. Thus, by Defendant's own words, he proffered that there were belongings in
2
    The apartment at 512 Daniel Street in Johnstown, Pennsylvania is located within the Oakburst Homes, which is
owned by the Johnstown Housing Authority. SUPPRESSION HEARING N.T. (OCT. 14, 2015), pgs. 5-6.
                                                        6
 the back room that did not belong to him. By this admission, others would have had access to
 the back room and/or kept their belongings       there. The surrounding facts of either scenario do
 not support a finding that Defendant was more than a "casual visitor" and had a reasonable
 expectation of privacy in the back room.

        Therefore, the suppression court submits that Defendant lacked a legitimate expectation
 of privacy and therefore, has no standing to appeal the suppression of any evidence seized at
 Locher's apartment.     However, the suppression court addresses Defendant's remaining issues
 should the Superior Court find that Defendant had a reasonable expectation of privacy.


 (3) Warrantless Entry and Plain View
        Defendant claims that "no exigent circumstances justified the officer's warrantless
 intrusion through the kitchen to the rear bedroom in pursuit of [D]efendant."             Co   CISE

 STATEMENT,   if l(c).
        Generally, "a search warrant is required before police may conduct any search[,]" and
 thus, a warrantless search is presumptively unreasonable. Comm. v. Caple, 121 A.3d 511, 517
 (Pa. Super. 2015) (citations omitted).         However, the existence of "exigent circumstances"
 constitutes an exception to the warrant requirement.           Id at 518. The Superior Court of
 Pennsylvania explained:
        The exigent circumstances exception to the warrant requirement recognizes that
        some situations present a compelling need for instant arrest, and that delay to seek
        a warrant will endanger life, limb or overriding law enforcement interests. In
        these cases, our strong preference for use of a warrant must give way to an urgent
        need for immediate action.
                                            *           *   *
        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 a danger to police or other persons inside or outside
        the dwelling.
Id. (citation and emphasis omitted).      In determining exigent circumstances, the court must
consider the totality of the circumstances in each particular case. Id. (citations omitted). If
exigent circumstances are established, then a warrantless entry is considered lawful.
· Additionally, any evidence found in the "plain view" of the police may be seized if: (1) the
incriminating character of the item is immediately apparent; and (2) the officer has a lawful
                                                    7
right of access to the object itself, i.e. by a lawful warrantless entry.       Id. at 520 ( citation
omitted).

            In this case, Johnstown police officers were dispatched to 512 Daniel Street for a
burglary in progress by two African American males, including one wearing a black book bag,
who climbed through a rear window of an apartment.           SUPPRESSIO    HEARING N.T. (OCT. 14,
2015), pgs. 36-37.      Upon arrival, three police officers set up a perimeter and Patrolman Slisz
observed through the window two African American males matching the description given in
the burglary report. Id at pg. 37. The police officers knocked on the door, Locher opened it,
and Defendant, while wearing the black book bag, "walked fastly [sic] to a slow run through
the kitchen into a back bedroom where [Patrolman Slisz] lost sight of him." Id. at pgs. 37-38.
Patrolman Slisz was "unaware for officer safety what might happen" because "[wjhen we walk
into the room and someone takes off to a back bedroom[,] it's somewhat suspicious."             Id. at
pgs. 38, 52.      Patrolman Slisz then conducted a protective sweep, followed Defendant to the
back room, and observed a black book bag and a firearm lying in plain view on top of the bed.
Id. at pgs. 38-39.      Patrolman Slisz testified that he had prior knowledge of Defendant as a
convicted felon who should not be near a firearm. Id. at pg. 41.
        Locher collaborated Patrolman Slisz's testimony by testifying that when Patrolman
Slisz first entered the apartment, he stated that a burglary in progress was reported at that
location.     Id. at pg. 25.   Locher also testified that Defendant "ran into the bedroom" as the
police officers were entering the apartment.          Id at pgs. 26-27.   Further,   Locher   allo-wed

Patrolman Slisz to enter and search the apartment. Id. at pgs. 20, 26. See also id. at pg. 40
(referencing COM.t\110 WEALTH'S       Ex. No. 2, "Consent to Search Form").           Therefore, the
suppression court submits that the police officer's       warrantless entry of the back room was
lawful due to exigent circumstances and the firearm lying on the bed was in plain view of that
lawful entry.


(4) Search of the Book Bag
        Defendant suggests that "the officer's warrantless search by opening a book bag in the
rear bedroom was beyond the scope of any consent and the contraband nature of a book bag is
not apparent." Co CISE STATEMENT, 1 l(d).
                                                  8
        In Pennsylvania, "a criminal defendant has no privacy expectation in property that he
has abandoned."      Comm. v. Barnette, 760 A.2d 1166, 1170 (Pa. Super. 2000) (citation omitted).
However,    a police officer may not commit            an improper or unlawful        act prior to the
abandonment or relinquishment       of the evidence.     Id. The Superior Court of Pennsylvania
further explained:
        Abandonment is primarily a question of intent, and intent may be inferred from
        words spoken, acts done, and other objective facts. All relevant circumstances
        existing at the time of the alleged abandonment should be considered. The issue
        is not abandonment in the strict property-right sense but whether the person
        prejudiced by the search had voluntarily discarded, left behind, or otherwise
        relinquished his interest in the property in question so that he could no longer
        retain a reasonable expectation of privacy with regard to it at the time of the
        search.
Id. at 1170-1171      (quoting Comm. v. Clark, 746 A.2d 1128,            1133-1134   (Pa. Super. 2000)
(original citation and emphasis omitted)).
       In this case, Defendant had no expectation of privacy in the back room, discussed
supra, and specifically denied ownership of the book bag despite the burglary reports, Locher,
and the police seeing him with it. AFFIDAVIT, pg. 1,      ,r,r 1-6;   SUPPRESSION HEARi G N.T. (OCT.
14, 2015), pgs. 36-38, 41-42. Moreover, Locher consented to the search of his apartment, see
infra,including the black book bag located in the back room. Id. at pgs. 20, 26. See also id. at
pg. 40 (referencing COMMONWEAL TH'S Ex. No. 2, "Consent to Search Form"). Therefore, the
suppression court submits that Defendant relinquished and abandoned any privacy expectation
he may have held in the black book bag, and thus, cannot challenge the search thereof.


(5) Third Party Consent
       Defendant claims that "the initial warrantless entry into the bedroom was unlawful and
the product of unlawful consent by a third party."           CONCISE STA TEME T,       ,r   1 (b ).   In the
alternative to the suppression court's findings that Defendant had no expectation of privacy in
the back room or the book bag and that the officer's warrantless entry was lawful, the
suppression court suggests that Locher, the leased tenant of the searched premises, lawfully
consented to the search of 512 Daniel Street. See AFFIDAVIT, pg. 2,        ,r 7.

                                                 9
            An individual may voluntarily consent to a search only as '·the product of an essentially
free and unconstrained choice-not the result of duress or coercion, express or implied, or a
will overborne-under the totality of the circumstances." Comm. v. Basking, 970 A.2d 1181,
1188   (Pa. Super. 2009) (citations omitted).      A third party has actual authority to consent to a
search if he "possesses common authority over or other sufficient relationship to the premises
or effects sought to be inspected."       Id. (quoting United States v. Matlock, 415 U.S. 164, 171
( 1974)).      "Common authority" is "based on mutual use of the property rather than a mere
property interest."       Id. at 1188-1189 (citations omitted).     For example, a landlord has no
implied common authority merely based on his property interest because he does not share
equal rights of use and enjoyment with the tenant. Id. ( citation omitted).
            In this case, Locher had actual and common authority to consent to the search as the
sole tenant of the apartment in actuality and as permitted by the lease. SUPPRESSIO          HEARING
N.T. (OCT. 14, 2015), pg. 6. Moreover, Locher specifically testified that he let Patrolman Slisz
enter the apartment, had no problem with his entry, and consented to the search of the
apartment. Id. at pgs. 20, 26. See also id. at pg. 40 (referencing COMMO, WEALTH'S Ex. No. 2,
"Consent to Search Form").         Therefore, the suppression court submits that Locher, as the sole
tenant, had authority to consent to the search of his apartment.


(6) Summary
            In addition to the discussion above, the suppression court submits the following
summary it placed on the record below to support of its denial of Defendant's Motion to
Suppress Physical Evidence:
            Looking at the entire situation, here is what I see. The officers are nearby when a
            911 call comes in. The officer said it only took a minute or two to get over there,
            but I know it may well have been more than that. But even presuming that it
            isn't, but in 15 minutes Officer Slisz has a signed consent.
            The period between the 911 call, arriving at the house, getting in place, observing,
            seeing the three men inside entering, watching [Defendant] slip away, these things
            aren't done in a calm situation, in a calm environment in a courtroom. The
            officers are there. A burglary in progress was reported. And is it surprising that
            the people that are there say there is no burglary? Officer Slisz didn't know who
            Mr. Locher was. He didn't know if he had any custodial rights in that house. He

                                                    10
       didn't know whether the other two individuals, Mr. Hornbuckle or [Defendant]
       had those rights, and then [Defendant] slips away.
       I conclude at that time[,] clearly Officer Slisz had all sorts of justification to make
       sure that nothing was being secreted, and more importantly[,] that his safety was
       not at risk, his or that of any of the other officers. He brings [Defendant] back.
       He then talks more with Mr. Locher, then gets his consent. Even presuming that
       the consent was given after that initial contact, I think there was plenty of
       justification for what Officer Slisz did up to that point.
       And then what authority does [Defendant] have? Does he have any custodial
       rights at all as to that property? No. He's a visitor. There is nothing that he has,
       no privacy right that I can see, none by the lease. And in fact, the lease says he
       can't have any such authority.
       And he certainly doesn't have rights superior to those of Mr. Locher. Mr. Locher
       allowed him to s[t]ay. I question whether there is any common authority at all,
       but even if there is, I conclude that Mr. Locher had the authority to permit the
       general search. And what is found? Two guns.
       Officer Slisz then says that as this progressed he realized that [Defendant] was a
       convicted individual who would not be authorized to own that gun. He knew of
       that through his Drug Task Force work and he said another officer indicated that
       there is a burglary as well, I believe, if I recall the testimony accurately.
       But at that point[,] I think he clearly has the right. He sees the guns, what
       vindication of his concern to secure officer safety than seeing there was a gun and
       a second gun when the bag was searched. [Defendant] denies that the bag is his.
       Consent was already given by Mr. Locher to search. The gun found in the bag I
       believe was one that was found with proper authority and proper consent.
                                         *       *       *
       So that having been said, on consideration of [Defendant's Motion to Suppress
       Physical Evidence], the same [is] denied.
SUPPRESSIO   HEARJNG N.T. (OCT. 14, 2015), pgs. 79-81.          Therefore, the suppression court
submits that for all of the foregoing reasons, its denial of Defendant's Motion to Suppress
Physical Evidence should be affirmed.




                                                11
                                          CONCLUSION

      For the reasons set forth above, the suppression court's Order dated October 14, 2015
and filed for record on October 19, 2015 should be AFFIRMED.




                                            RESPECTFULLY SUBMITTED,




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