J-S31015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WARREN D. ANDERSON,

                            Appellant                 No. 372 MDA 2015


           Appeal from the Judgment of Sentence January 27, 2015
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003367-2013



BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 18, 2016

       Appellant, Warren D. Anderson, appeals from the January 27, 2015

judgment of sentence entered following his conviction at a bench trial of

possession of cocaine, possession of a small amount of marijuana,

tampering with physical evidence, and possession of drug paraphernalia.

Following our careful review, we affirm.

       The trial court summarized the facts of the crimes as follows:

             On May 17, 2013 at approximately noon, Officer Dan
       Smeck of the Lower Paxton Township Police Department, along
       with members of the Dauphin County Probation Office and
       Dauphin County Sheriff’s Department, were attempting to serve
       an arrest warrant for a Mr. Kevin Ramos at 2308 Orange Street
       in Harrisburg, Pennsylvania. When Officer Smeck arrived at
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      2308 Orange Street, he did not get a response at the door. He
      went to the adjacent house, knocked on the door, spoke to the
      gentleman who answered, and showed him a photograph of Mr.
      Ramos. The gentleman indicated that he had seen Mr. Ramos,
      and that he lived next door. Officer Smeck then went to the
      neighbor on the other side of 2308 Orange Street, and such
      neighbor also indicated that Mr. Ramos lived next door.
      Additionally, it was known that Mr. Ramos rode a bicycle from
      his house to his work place, and there was a bicycle in the back
      of 2308 Orange Street. While Officer Smeck was knocking again
      on the front door of the residence, an officer in the back
      indicated that someone had come out back, had seen the
      officers, and had run back inside the house. At that point,
      Officer Smeck made entry through the front door by kicking it in.
      The officers located a black male in the living room as soon as
      they made entry, and he was detained. Officer Smeck testified
      that when the officers entered the house, they had made a
      decision to detain everyone in the house for the officers’ safety,
      until the house was secure.

             On the second floor of the residence there was a locked
      bathroom. When the officers made their way in, [Appellant] was
      standing over the toilet. Officer Smeck testified that a deputy
      sheriff grabbed [Appellant] and indicated that [Appellant] was
      dumping marijuana into the toilet. [Appellant] was detained and
      taken to the living room with the other gentleman. One of the
      officers handed Officer Smeck a wallet containing an
      identification card with Mr. Ramos’[s] name on it. At that point,
      Officer Smeck asked [Appellant] and the other detained
      gentleman if they knew where Mr. Ramos was. [Appellant]
      offered no response, and one of the probation officers indicated
      that it appeared that [Appellant] had something in his mouth.
      When asked to spit it out, [Appellant] did not comply. One of
      the probation officers used a [T]aser to “dry stun" [Appellant],
      and he spit out what was in his mouth. It was determined that
      [Appellant] had been keeping drugs in his mouth, and [the
      drugs] were turned over to the Harrisburg City Police. After
      [Appellant] and the other gentleman were taken away, Mr.
      Ramos pulled up on a bicycle and was arrested pursuant to the
      warrant.

Trial Court Opinion, 6/29/15, at 1–2 (internal citations omitted).




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      Appellant filed a motion to suppress evidence on February 12, 2014.

On June 6, 2014, the trial court held a suppression hearing; it denied the

suppression motion on October 9, 2014.        Following a bench trial, which

concluded on January 27, 2015, the trial court sentenced Appellant as

follows:

      [A]t Count 1, possession of a controlled substance, substance
      cocaine, I sentence [Appellant] to be incarcerated for not less
      than 6 months, no more than 12 months; impose a fine in the
      amount of $200, and costs of these proceedings.

            At Count 2, possession of a small amount of marijuana, I
      impose a fine in the amount of $150 and costs. Count 3 is a $25
      fine and costs.

             And at Count 4, I sentence the defendant to a term of
      incarceration not less than 6 months, no more than 24 months;
      a fine in the amount of $50, and costs of these proceedings.

            The sentence at Count 1 and Count 4 shall run concurrent
      with each other for an aggregate sentence of 6 to 24 months.
      This docket shall run consecutive to any and all outstanding
      matters.

N.T., 1/27/15, at 37.

      Appellant filed a timely notice of appeal to this Court on February 25,

2015. On March 13, 2015, the trial court vacated its prior order appointing

defense counsel and appointed new, present counsel that day.        Appellant

and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following single issue for our review:

      I. Whether the trial court erred in denying Appellant’s motion to
      suppress evidence where police searched Appellant’s home
      without a warrant, did not have permission to enter or search
      the residence, and where such a search violates the Fourth

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      Amendment of the United States Constitution and article 1,
      section 8 of the Constitution of the Commonwealth of
      Pennsylvania?

Appellant’s Brief at 4 (full capitalization and underlining omitted).

      Appellant assails the trial court’s failure to grant his suppression

motion.

      In evaluating a suppression ruling, we consider the evidence of
      the Commonwealth, as the prevailing party below, and any
      evidence of the defendant that is uncontradicted when examined
      in the context of the record. Commonwealth v. Sanders, 42
      A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the
      factual findings of the suppression court where the record
      supports those findings and may only reverse when the legal
      conclusions drawn from those facts are in error. Id.

Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015).

Moreover, on October 30, 2013, our Supreme Court in In re L.J., 79 A.3d

1073 (Pa. 2013), clarified that the scope of review of orders granting or

denying motions to suppress is limited to the evidence presented at the

suppression hearing.    Here, the suppression hearing post-dates the filing

date of L.J., which was held to be prospective; thus, L.J. applies to this

case. Commonwealth v. Caple, 121 A.3d 511, 517 n.1 (Pa. Super. 2015).

      Relying upon Steagald v. United States, 451 U.S. 204 (1981),

Appellant asserts that the drugs found in the residence at 2308 Orange

Street should have been suppressed because police did not have a

reasonable belief that Kevin Ramos, the subject of the arrest warrant, lived

at that address.       Appellant is mistaken.      As we recently stated in




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Commonwealth v. Romero, __ A.3d __, __, 2016 PA Super 87, *3 (Pa.

Super. 2016) (filed April 19, 2016):

      [w]here authorities have a reasonable belief that the subject of
      an arrest warrant lives within a given premises, they can enter
      the home and arrest the suspect without a search warrant.
      Commonwealth v. Muniz, 5 A.3d 345 (Pa. Super. 2010).
      Compare Commonwealth v. Conception, 441 Pa. Super. 539,
      657 A.2d 1298 (Pa. Super. 1995) (where police listed address on
      arrest warrant as possible residence of one of two fugitives, no
      search warrant needed to enter third-party defendant’s
      apartment) with St[ea]gald v. United States, 451 U.S. 204,
      214, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (where authorities
      conclude fugitive may be inside premises, but is not believed to
      be resident of premises, arrest warrant for fugitive inadequate to
      justify search of third-party owner’s residence).

      In the instant case, Lower Paxton Township Police Officer Dan Smeck

testified that he went to 2308 Orange Street in Harrisburg around noon on

May 17, 2013, to arrest Kevin Ramos. Kevin Ramos was the subject of the

arrest warrant Officer Smeck possessed, and Ramos’s address was listed

therein as 2308 Orange Street. N.T. (Suppression), 6/6/14, at 4–6. Officer

Smeck testified that he had “a warrant packet” that contained “the actual

warrant, a photograph of the individual, a criminal history and copy of the

police report.” Id. at 6.

      The record reveals that Officer Smeck had a reasonable belief that

Kevin Ramos lived at 2308 Orange Street. When he knocked on the front

door and no one answered, Officer Smeck went to the adjacent house to the

right of 2308 Orange Street and spoke to the individual residing there. N.T.

(Suppression), 6/6/14, at 6. The officer showed the neighbor the picture of


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Ramos, and the neighbor confirmed that Ramos lived at 2308 Orange Street.

Id. Officer Smeck then went to the adjacent residence to the left of 2308

Orange Street and showed the photograph of Kevin Ramos. Id. at 7. That

gentleman also indicated that Kevin Ramos lived at 2308 Orange Street.1

Id.   Officer Smeck indicated that he had information from Police Officer

Haley Miller, the officer who had filed the police report, contained in his

packet, that Kevin Ramos rode a bicycle to work.      Id. at 7, 13.   Other

officers at the scene2 who were positioned in the back of the house,

confirmed that there was a bicycle in the rear of the house.      Id. at 7.

Officer Smeck testified that as he continued to knock on the front door and

announce his identity, a male exited the back door and ran back inside when

he saw police. Id. at 7. This information, as well, was conveyed to Officer

Smeck from officers positioned in the rear of the building. Id. All of these

factors support Officer Smeck’s reasonable belief that Kevin Ramos resided



____________________________________________


1
   While the defense attempted to refute Officer Smeck’s testimony that he
sought an identification of Ramos from the neighbor to the left, that
testimony was equivocal. Although the neighbor testified at the suppression
hearing that he had no recollection of anyone inquiring about Kevin Ramos
on the day in question, which in and of itself is vague, upon cross-
examination, when asked if he was “100 percent certain” about his
testimony, he replied, “No.” N.T. (Suppression), 6/6/14, at 21–22.
2
    Officer Smeck testified that there were “at least 10 law enforcement
officials involved” and present at the scene. N.T. (Suppression), 6/6/14, at
6, 8.



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at the location. Officer Smeck then kicked in the front door and entered the

premises. Id. at 7–8.

     The trial court relied on Commonwealth v. Muniz, 5 A.3d 345 (Pa.

Super. 2010), in denying Appellant’s motion to suppress. In that case, the

appellant claimed that because police entry into an apartment was

predicated solely upon an arrest warrant for a different man, and not upon

an arrest warrant for Mr. Muniz or a search warrant for the premises, the

search was illegal. Id. at 349. Relying on Steagald, Mr. Muniz argued that

police did not have a valid basis to enter the apartment. Id. at 350. Based

upon consideration of Steagald, Commonwealth v. Stanley, 446 A.2d

583 (Pa. 1982), and Conception, the Muniz Court held that the authorities’

entry into the appellant’s apartment was not illegal. Muniz, 5 A.3d at 350.

           Resolution of the combination of situations occurred in
     Commonwealth v. Conception, 441 Pa. Super. 539, 657 A.2d
     1298 (1995), where we considered the Fourth Amendment rights
     of a third party when her residence was entered under the
     mistaken belief that it was also the residence of someone subject
     to an arrest warrant—a factual scenario nearly identical to this
     matter. In Conception the police showed up at the defendant’s
     apartment with an arrest warrant for Robert Vargas and Martin
     Rivera, and a reasonable belief that they lived at the
     subject apartment. Id. at 1299. Instead of Vargas or Rivera,
     the defendant opened the door, stated that she did not know
     either man and refused the police entry into the premises. Id.
     Nevertheless, the police forcibly entered the apartment and
     searched the premises for Vargas and Rivera. Id. As a result of
     that search, the police found marijuana in plain view. Id. The
     defendant was consequently placed under arrest. Id.

            The defendant in Conception relied on Steagald for the
     position that, notwithstanding the arrest warrant for Vargas and
     Rivera, the police were required to have a valid search warrant

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      to search her premises.       Id. at 1300.    However, in the
      Conception decision we distinguished Steagald, explaining that
      in Steagald the police understood the premises to belong to a
      third party. In Conception, however, the police believed the
      apartment to be the residence of one of the subjects of the
      arrest warrant (i.e. Vargas). Therefore, although the individual
      asserting the Fourth Amendment rights in Conception was the
      third-party (as in Steagald), the person being searched for
      was believed to reside at the premises. Under this analysis,
      we held that Stanley was more applicable. Thus, because the
      authorities had a reason to believe that a subject of the
      arrest warrant lived within the premises, they did not
      need a search warrant to enter the premises to search for
      the suspects. Id. at 1300–1301.

Muniz, 5 A.3d at 351 (footnote omitted) (emphases added). The same is

true in the present case.

      In the case sub judice, the trial court explained:

      [O]nce the officers made entry into 2308 Orange Street, they
      lawfully searched the residence for Mr. Ramos.               They
      encountered two men, one of whom was [Appellant], and
      observed him flushing drugs down the toilet. [Appellant’s] illegal
      drugs were discovered while he was lawfully in custody, and
      would have inevitably been discovered.

Trial Court Opinion, 6/29/15, at 4–5.

      As we stated in Romero:

      [b]ecause the arrest warrant for [a third party] was valid, the
      authorities had the legal basis to enter [Romero’s] residence
      without a search warrant, despite the fact that [the third party]
      was not inside the home. Muniz, supra; Conception, supra.
      Therefore, the entry of the residence did not violate [Romero’s]
      Fourth Amendment rights and the court improperly suppressed
      the evidence uncovered during the search of [Romero’s]
      residence.

Romero, __ A.3d at __, 2016 PA Super 87 at *5.             Thus, the trial court

properly denied suppression in this case.

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         Judgment of sentence affirmed.

         Judge Strassburger joins this Memorandum.

         Judge Ott files a Concurring Memorandum in which Judge Strassburger

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2016




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