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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                   v.                     :
                                          :
KYLE WHITE,                               :          No. 2466 EDA 2015
                                          :
                        Appellant         :


           Appeal from the Judgment of Sentence, June 26, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009289-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED JANUARY 18, 2017

      Kyle White appeals from the judgment of sentence entered on

June 26, 2015 in the Court of Common Pleas of Philadelphia County after his

conviction in a waiver trial of possession of a firearm, possession with intent

to manufacture or deliver, intentional possession of a controlled substance

by person not registered, and possession of instruments of crime. 1 The trial

court sentenced appellant to an aggregate term of imprisonment of four to

eight years, followed by three years of probation. We affirm.

      The trial court set forth the following factual history:

                  On May 16, 2014, at approximately 9:45 p.m.,
            Officer [Jonathan] Czapor set up plainclothes

* Former Justice specially assigned to the Superior Court.
1
   18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 780-113(a)(30),               35   P.S.
§ 780-113(a)(16), and 18 Pa.C.S.A. § 907(a), respectively.
J. S63002/16


              surveillance in an unmarked vehicle at the
              intersection of Darien and Lycoming Streets to
              investigate illegal narcotics sales. He parked there
              for a few minutes and noticed [appellant] driving a
              silver Chrysler. [Appellant] parked the car across
              the intersection and was on the same side of the
              street as Officer Czapor. [Appellant] exited the car
              and walked into the property of 4100 Darien Street
              and remained inside for a few minutes. In the
              meantime, a silver Chevrolet Astro van, driven by
              Kenneth Cobbs, double parked in front of the
              property.    [Appellant] came out, engaged in a
              conversation with Mr. Cobbs, and told him to park
              while he “come[s][2] out with it.” [Appellant] again
              went inside the property while Mr. Cobbs parked.
              [Appellant] exited the property and walked towards
              Mr. Cobbs’ vehicle with a clenched fist. He went to
              the passenger side’s window and reached his entire
              arm inside that window. When [appellant] took out
              his arm, Officer Czapor observed United States
              Currency in [appellant’s] hand, which he was
              counting while walking back towards the property.
              [Appellant] reentered the property and Mr. Cobbs
              drove away from the area. Officer Czapor, with six
              years of experience and who conducted thousands of
              narcotics [investigations], believed this to be a
              narcotics transaction. The back-up officers stopped
              Mr. Cobbs and recovered six packets of crack
              cocaine, which was [sic] tested positive. Meanwhile,
              [appellant] exited the property and went inside the
              Chrysler. Officer Czapor notified back-up officers,
              who stopped [appellant] and placed him under
              arrest.[Footnote 2]

                     [Footnote 2] Money was recovered on
                     the [appellant], which included nine $20
                     bills, ten $10 bills, five $5 bills, and
                     seven $1 [bills], totaling up to be $312.

                    Officer Czapor, Sergeant [Wali] Shabazz, and
              Officer [John] Seigafuse proceeded to secure the
              property that the [appellant] was seen entering and

2
    Brackets in original.


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          leaving. When they arrived at the property, the door
          was unlocked. Officer Czapor testified that the first
          floor lights were on, while the second floor was
          completely dark. The officers went inside the house,
          located a male and female sleeping upstairs and
          brought them downstairs in order to secure the
          house. Officer Shabezz [sic] conducted a general
          safety frisk of the bedroom to ensure that there were
          no weapons. Officer Czapor testified that the officers
          did not search until they received consent. The
          officers only lifted up the cushions to check for
          weapons before they placed the male and female on
          the couch.

                 [Appellant’s] mother, Vertell Whaley-Whiting,
          who was also the owner of the house, came home
          minutes later and gave verbal and written consent to
          the search. She was calm and cooperative about the
          search.     Sergeant Shabezz [sic] explained to
          Ms. Whaley-Whiting about the consequences and
          other specific details with regards to the search,
          including her right not to consent. She made no
          objections nor asked any questions.        Sergeant
          Shabezz [sic] recovered three handguns inside the
          dresser drawer in the dining room on the first
          floor[.Footnote 3] Officer Seigafuse recovered one
          clear baggie containing 48 packets of crack cocaine
          and a digital scale from a separate drawer of the
          same dresser.[Footnote 4]

                [Footnote 3] Counsels [sic] stipulated
                that the three operable handguns that
                were recovered and placed on property
                receipt included a black Rock Island
                .45 caliber  loaded    with   four  live
                round [sic], a black Smith & Wesson
                .357 loaded with six live rounds, and a
                silver and white small caliber handgun
                that was unloaded.

                [Footnote 4] Counsels [sic] stipulated
                that the drugs that was [sic] recovered
                and placed on property receipt were [sic]



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                   tested positive for cocaine-based [sic]
                   and marijuana.

                   Defense called two witnesses to testify. Aaron
            Cooper, [appellant’s] sister’s boyfriend, testified that
            he was upstairs with [appellant’s] sister when the
            police arrived on that day in question. He testified
            that there were four officers present, but could not
            recall the description of the fourth officer.        He
            recalled that all the lights, except for the second
            floor TV lights, were off. Mr. Cooper testified that he
            never saw the officers recover guns from the dining
            room, and that the only gun in the house was a
            small gun that he owned in the upstairs bedroom.
            Ms. Whaley-Whiting, [appellant’s] mother and owner
            of the house, also testified.      Both Ms. Whaley-
            Whiting and Mr. Cooper testified that the officers
            showed her the contrabands [sic] that they found
            from [sic] the dining room drawers when she came
            inside the house before she signed the consent form.
            She testified that she did not see the officers search
            for anything while she was present.

Trial court opinion, 11/23/15 at 2-4 (citations to notes of testimony

omitted).

      Appellant raises the following issue for our review:

            WHETHER THE COURT ERRED IN FAILING TO GRANT
            THE MOTION TO SUPPRESS THE PHYSICAL
            EVIDENCE?

Appellant’s brief at 4.

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

motion is as follows:

            [We are] limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.           Because the
            Commonwealth prevailed before the suppression


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            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.          Where the
            suppression court’s factual findings are supported by
            the record, we are bound by these findings and may
            reverse only if the court’s legal conclusions are
            erroneous.     Where . . . the appeal of the
            determination of the suppression court turns on
            allegations of legal error, the suppression court’s
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).

      Preliminarily, we note that appellant raises an argument in his brief

that police lacked probable cause to arrest him because Officer Czapor’s

testimony regarding the observations he made outside of appellant’s

residence was insufficient to establish probable cause that a drug transaction

occurred between appellant and Mr. Cobbs. Because appellant failed to raise

this issue in his Pa.R.A.P. 1925(b) statement, he waives it on appeal.

Pa.R.A.P. 1925(b)(4)(vii) (issues not included in the statement are waived).

      Appellant next contends that the trial court erred in failing to suppress

the physical evidence seized from 4100 Darien Street (the “Residence”).

Appellant claims that the warrantless entry into the Residence was

unconstitutional for lack of probable cause and exigent circumstances, and

therefore, the homeowner’s subsequent consent to search was tainted.



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Consequently, appellant claims that all physical evidence seized should have

been suppressed.

        The Fourth Amendment to the United States Constitution and Article 1,

Section    8     of    the   Pennsylvania   Constitution      protect   citizens   against

unreasonable searches and seizures.                Both constitutions forbid police to

enter a private home without a warrant absent probable cause and an

exception to the warrant requirement, such as exigent circumstances or

consent.        Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa.Super.

2013). Probable cause exists where “the facts and circumstances which are

within the knowledge of the officer at the time of the arrest, and of which he

has reasonably trustworthy information, are sufficient to warrant a man of

reasonable caution in the belief that the suspect has committed or is

committing a crime.” Commonwealth v. Thompson, 985 A.2d 928, 931

(Pa. 2009) (citation omitted).         We need not discern whether the officer’s

belief was more likely correct than incorrect. Id. A probability of criminal

activity, rather than a prima facie showing thereof, is sufficient.                Id.   To

answer the question, we examine the totality of the circumstances. Id.

        Here,    the    record   reflects   that    Officer   Czapor,    a   member      of

Philadelphia’s 25th district narcotics team, was investigating illegal narcotics

sales at the intersection of Lycoming and Darien Streets in Philadelphia at

approximately 9:45 p.m. on May 16, 2014. (Notes of testimony, 4/27/15 at

6-7.)     While surveilling that intersection in an unmarked parked police



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vehicle, Officer Czapor witnessed appellant arrive at the location in a silver

Chrysler. (Id. at 7-8.) After parking his vehicle, appellant went inside the

Residence where he remained for a few minutes. (Id. at 8.) While inside, a

Chevy Astro van operated and occupied by Kenneth Cobbs pulled up and

parked outside the Residence.     Appellant then exited the Residence and

engaged in a conversation with Mr. Cobbs which Officer Czapor could not

hear. Officer Czapor then observed appellant turn around and, while walking

toward the Residence, turned back toward Cobbs’ vehicle and yelled,

“Park up. I’ll come out with it.” (Id. at 9.) Appellant then went into the

Residence, and Cobbs moved his vehicle to the next block of Darien Street.

Appellant remained in the Residence for a short time and then exited with a

clenched right fist.   Appellant walked to Cobbs’ vehicle, reached his arm

inside the open passenger’s window, and put his right clenched fist inside.

After a few seconds, appellant removed his fist, and he was holding

currency. Appellant began to walk towards the Residence, and as he did, he

fanned the money and began to count it.           (Id. at 9-10.)    Appellant

re-entered the Residence, and Mr. Cobbs drove away.        (Id. at 10.)   The

record further reflects that Officer Czapor relayed the description of Cobbs’

vehicle to other officers who pursued Cobbs and then arrested him after

finding alleged crack cocaine. (Id.)

      As Officer Czapor continued his surveillance, he then observed

appellant exit the Residence and get into the Chrysler that appellant had



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parked earlier. (Id.) Officer Czapor called for backup, and appellant was

arrested.      (Id.   at   11.)   Officer     Czapor,   Sergeant   Shabazz,   and

Officer Seigafuse then entered the Residence through an open and unlocked

front white screen door for the purpose of securing the Residence. (Id. at

11, 36.)

      Considering the totality of the circumstances, the record supports the

trial court’s conclusion that probable cause existed to warrant the reasonable

belief that criminal activity was afoot inside the home; specifically, the

possession and sale of illegal drugs.

      We must next determine whether the record supports the trial court’s

finding that exigent circumstances existed to justify the warrantless entry.

            [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 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. In
            analyzing exigent circumstances, courts must
            balance the needs of law enforcement against the
            rights and liberties of private citizens.




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Johnson, 68 A.3d at 937 (citation omitted). The Commonwealth bears the

burden of presenting 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 the police to forego

seeking a warrant.    Commonwealth v. Bostick, 958 A.2d 543, 556-557

(Pa.Super. 2008) (citation omitted). Moreover, all decisions made pursuant

to the exigent circumstances exception must be made cautiously because it

is an exception that by its nature can very easily swallow the rule unless

applied in only restricted circumstances. Id. at 557.

        Here, as discussed above, based on Officer Czapor’s observations,

police had probable cause to believe that drugs were being sold out of the

Residence.     Possessing and selling illegal drugs are serious offenses.

Because police had already apprehended appellant prior to entering the

Residence, however, they would have no reason to believe that appellant

was inside and armed or that he would escape. Additionally, nothing in the

record demonstrates that a danger to police existed inside the Residence or

that evidence would be destroyed if the police took the time to obtain a

search warrant. With respect to entry, there was no evidence that the police

entered the Residence with force; rather, they entered through an unlocked

door.    Additionally, their entry occurred at night when only the home’s

downstairs lights were on. Finally, nothing in the record demonstrates that

police had any reason to believe that there were individuals inside the



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Residence.   Therefore, we find that the record fails to support the trial

court’s finding that exigent circumstances existed to justify the warrantless

entry. That, however, does not end our inquiry.

      The record reflects that police did not search the Residence until

appellant’s mother, the homeowner who arrived at the Residence minutes

after the police entered through the unlocked door, gave police oral and

written consent to conduct the search. Therefore, although the warrantless

entry was illegal for want of exigency, that unlawful police conduct did not

lead to the discovery of the physical evidence that appellant sought to

suppress.    Rather, it was the homeowner’s oral and written consent to

search that lead to the discovery of the physical evidence. Appellant failed

to establish that this consent was coerced. Accordingly, although the record

fails to support the trial court’s finding that exigent circumstances existed,

the search was nevertheless constitutional because it commenced after

police had probable cause to believe criminal activity was afoot and after

police received the homeowner’s oral and written consent to conduct the

search.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2017


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