J-S22034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER S. MULLEN                      :
                                               :
                       Appellant               :   No. 1692 MDA 2019

          Appeal from the Judgment of Sentence Entered April 2, 2019
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001030-2017


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                  FILED MAY 22, 2020

        Appellant, Christopher S. Mullen, appeals from the aggregate judgment

of sentence of six to thirteen years of confinement, which was imposed after

his convictions at a bench trial for: two counts of persons not to possess, use,

manufacture, control, sell or transfer firearms; one count of knowingly or

intentionally possessing a controlled or counterfeit substance; and one count

of use of or possession with intent to use drug paraphernalia.1 We affirm.

        The charges arose out of an incident on June 7, 2017, where
        parole agents, United States Marshals, and police officers went to
        [] Anthony Street[, Williamsport,] based on an anonymous tip that
        [Appellant], who was wanted on a warrant for absconding from
        parole supervision, was presently living at that location with his
        girlfriend or ex-girlfriend and he was in possession of firearms and
        controlled substances. . . . The officers and agents went to the
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*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. § 6105(a)(1) and 35 P.S. § 780-113(a)(16), (32), respectively.
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      residence and knocked on the door. . . . [A] white male came to
      the door. The white male initially denied that [Appellant] was in
      the residence but after he stepped outside and was shown a
      picture of [Appellant], the white male nodded his head and said
      [Appellant] was inside the residence.

      When the law enforcement officers entered the residence to arrest
      [Appellant], they observed firearms and controlled substances in
      plain view inside the residence. The police then obtained a search
      warrant for the residence and seized various firearms, cocaine,
      and drug paraphernalia.

      On August 10, 2017, [Appellant] filed a motion to suppress, in
      which he alleged that the authorities lacked a reasonable belief
      that he was located inside the residence; therefore, the entry into
      the residence was unlawful and any evidence observed and seized
      as a result of that entry must be suppressed.

Trial Court Opinion, dated January 10, 2020, at 1-2 (footnote omitted); see

also Motion to Suppress, 8/10/2017, at ¶¶ 15-17 (“lacking th[e] reasonable

belief” that Appellant “was within the residence[,] . . . the unnamed parole

agents and US Marshalls unlawfully entered [] Anthony Street”; “[b]ut for the

unlawful entry, officers would not have been able to observe the cocaine,

shotgun, or pistol”).

      On October 12, 2017, the trial court held a hearing on the suppression

motion, during which Appellant argued that “the information provided by the

anonymous informant . . . is not sufficient grounds for them to have a

reasonable belief that [Appellant] was inside that residence” and that –

      whatever information parole gathered from [the white male who
      opened the door] was unreliable and could not form reasonable
      grounds to have that reasonable belief that [Appellant] was inside
      the residence. . . . And so we would once again just argue that
      there is not a reasonable belief that [Appellant] was inside the
      residence at that time, and so any entry into that residence was
      unlawful.

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N.T., 02/12/2017, at 14-15.          At the suppression hearing, Appellant never

argued that the entry and search were illegal for being made without a search

warrant for the Anthony Street residence. See id. “[O]n October 13, 2017,

the court denied the motion.” Trial Court Opinion, dated January 10, 2020,

at 2.

        Appellant was convicted on February 15, 2019, and the trial court

imposed the aforementioned sentence on April 2, 2019. Following the grant

of a petition filed under the Post Conviction Relief Act,2 Appellant’s direct

appeal rights were reinstated nunc pro tunc, and he filed this timely direct

appeal on October 14, 2019.3

        Appellant presents the following issue for our review:

        Whether the trial court erred in failing to suppress evidence that
        was obtained pursuant to a warrantless search in a third-party
        residence.

Appellant’s Brief at 6.

        In reviewing the denial of a suppression motion, our role is to
        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
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2   42 Pa.C.S. §§ 9541–9546.
3 Appellant filed his statement of errors complained of on appeal on
October 17, 2019. The trial court entered its opinion on January 10, 2020.

The Commonwealth has chosen not to file an appellate brief. See Letter from
Joseph C. Ruby, Assistant District Attorney, to Jennifer Traxler, Esquire,
Deputy Prothonotary (April 20, 2020).

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J-S22034-20


       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.

Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and

internal brackets omitted). Our scope of review from a suppression ruling is

limited to the evidentiary record created at the suppression hearing.

Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).

       In his appellate brief, Appellant contends that “law enforcement

unlawfully entered the . . . residence” where he was arrested “without a search

warrant supported by a judicial determination of probable cause” and with “no

exigent circumstances[,4]” and, accordingly, “[t]he evidence was unlawfully

obtained[.]”    Appellant’s Brief at 13-14.      He argues that he consequently

“should be granted a new trial[.]” Id. at 13. Appellant now concedes “there

was a strong reason to believe that [he] was in the residence[.]” Id. at 16.

       The only claim in Appellant’s motion to suppress and during the

suppression hearing was that the agents and marshals did not have sufficient


____________________________________________


4  Exigent circumstances are an exception to the warrant requirement,
excusing the need for a warrant where “prompt police action is imperative” -
i.e., when the delay in obtaining a search warrant would result in personal
injury or the loss of evidence. Commonwealth v. Johnson, 969 A.2d 565,
569 (Pa. Super. 2009) (citation omitted); accord Schmerber v. California,
384 U.S. 757 (1966).

                                           -4-
J-S22034-20


reason to believe that he was inside the residence prior to their entry, whereas

Appellant’s claim on appeal is that the agents and marshals lacked a search

warrant authorizing entry into the residence or exigent circumstances.

Compare Motion to Suppress, 8/10/2017, at ¶¶ 15-17, and N.T.,

02/12/2017, at 14-15, with Appellant’s Brief at 13-16.          As Appellant’s

appellate challenge was not raised before the trial court, it hence was not

preserved.    See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). Accordingly, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Murray joins the Memorandum.

      Judge Olson concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/22/2020




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