Com. v. Ariondo

Decision Date31 August 1990
Citation580 A.2d 341,397 Pa.Super. 364
PartiesCOMMONWEALTH of Pennsylvania v. John Donald ARIONDO, Appellant.
CourtPennsylvania Superior Court

Joseph G. Kanfoush, Pittsburgh, for appellant.

Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com.


WIEAND, Judge:

John Donald Ariondo was tried nonjury and was found guilty of possession of cocaine, a controlled substance, and possession of cocaine with intent to deliver. Post-trial motions were filed and, following argument thereon, were denied. Ariondo was sentenced to serve a term of imprisonment for not less than two (2) years nor more than ten (10) years on the conviction for possession with intent to deliver. 1 On direct appeal from the judgment of sentence, Ariondo asserts that: (1) the trial court erred by refusing to suppress evidence seized from his home pursuant to a search warrant where, prior to obtaining the warrant, the police had illegally entered the residence without consent and had conducted a warrantless search in violation of his Fourth Amendment right to be free from unreasonable searches and seizures; and (2) the evidence presented at trial was insufficient to establish that he possessed cocaine with intent to deliver it.

In reviewing the denial of appellant's motion to suppress the evidence seized from his home, we must

'determine whether the factual findings of the [suppression] court are supported by the record. In making this determination we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).'

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), quoting Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Hughes, 521 Pa. 423, 438, 555 A.2d 1264, 1271-1272 (1989); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987).

When viewed in this manner, the pertinent facts in the instant case may be summarized as follows. Acting on information from a confidential informant that appellant had been receiving shipments of cocaine via United Parcel Service (UPS), detectives of the Penn Hills Police Department contacted UPS and requested that they be informed of any packages addressed to appellant. On May 5, 1988, Jesse Holman, a UPS security supervisor, notified Detectives Robert Frank and George Sens of the Penn Hills narcotics unit that a package addressed to Ariondo Electric was destined for appellant's residence at 560 Springdale Drive, Penn Hills, Allegheny County. The package was brought to the Penn Hills police station where a trained, drug sniffing canine, by scratching and biting the package, signalled that drugs were present. With this information, police were able to obtain a search warrant authorizing them to open the package. When they did so, they found, inter alia, a plastic bag containing approximately five ounces of a white, rocky powder, which tested positive for cocaine. After this discovery, police removed the bulk of the cocaine, 126.7 grams, to be held as evidence. The remaining 12.6 grams of cocaine were placed back into the package, and the package was resealed. Detectives Frank and Sens then began preparing an affidavit for a warrant to search appellant's residence. Inexplicably, Frank and Sens believed that they would not have sufficient probable cause to obtain a search warrant until after the package had been delivered.

Later the same evening, at or about 8:00 p.m., police established a surveillance of appellant's house. The package was delivered by UPS security supervisor Holman and Officer Jeffrey Perz of the Penn Hills Police Department about 8:20 p.m. Appellant answered the door and accepted the package. After the delivery had been made, police waited ten to fifteen minutes until they believed the package had been opened. Because they feared that appellant would notice that the bulk of the cocaine which he expected was missing, the police decided to enter and secure the residence until a search warrant was obtained so that the evidence would not be destroyed. Thus, Detective Frank knocked on the door and identified himself as a police officer. The door was opened by Edward Ferraro, 2 a friend of the appellant who was staying at the house. Police informed him that they were securing the residence because they had reason to believe that narcotics were present. The police then entered the house and, upon hearing noises coming from the back of the house, proceeded to the master bedroom at the rear of the one story, single family dwelling, where they found appellant. There, in plain view, they also observed the open package which had been delivered a short time before, along with various items of drug paraphernalia. After finding appellant, the police conducted a limited protective sweep of the remainder of the house to determine whether other persons were present and to ensure their own safety.

After securing the residence and determining that only appellant and Ferraro were in the house, police informed appellant and Ferraro that a search warrant would be obtained and asked for their consent to search the house. Consent was refused. Therefore, the police remained with appellant and Ferraro in the living room of the house while Detectives Frank and Sens went to the magistrate's office to obtain a search warrant. When Frank and Sens returned, the search warrant was executed, and the evidence was seized. No evidence had been seized by police during the prior warrantless sweep of the house.

"The Fourth Amendment to the Constitution of the United States 'protects people from unreasonable government intrusions into their legitimate expectations of privacy.' " Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978), quoting United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538, 546 (1977). See also: Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Commonwealth v. Williams, 380 Pa.Super. 227, 230, 551 A.2d 313, 314 (1988); Commonwealth v. Rispo, 338 Pa.Super. 225, 230, 487 A.2d 937, 939 (1985). In general, the courts have viewed a person's residence as an area which is given the greatest protection by the Fourth Amendment. Thus, the United States Supreme Court has said:

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381-1382, 63 L.Ed.2d 639, 653 (1980). See also: United States v. Velasquez, 626 F.2d 314, 317 (3d Cir.1980); Commonwealth v. Conn, 377 Pa.Super. 442, 446, 547 A.2d 768, 770 (1988). "Upon closing the door of one's home to the outside world, a person may legitimately expect the highest degree of privacy known to our society." Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1220 (1977).

"As a general rule, a search or seizure without a warrant is deemed unreasonable for constitutional purposes." Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978), citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971). See also: Commonwealth v. Chandler, 505 Pa. 113, 122, 477 A.2d 851, 855 (1984); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 51, 512 A.2d 1199, 1204 (1986), allocatur denied, 515 Pa. 573, 527 A.2d 535 (1987), cert. denied, --- U.S. ----, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989); Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983).

[W]arrantless searches and seizures are per se unreasonable "subject only to a few specifically established and well-delineated exceptions." E.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, [2031-32], 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, , 19 L.Ed.2d 576 (1967); see Commonwealth v. Shaffer, 447 Pa. 91, 103, 288 A.2d 727, 734 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Cockfield, 431 Pa. 639, 644, 246 A.2d 381, 383 (1968). Furthermore, in this jurisdiction the burden is upon the Commonwealth to prove by a preponderance of the evidence that a search or seizure did not violate the fourth amendment.

Commonwealth v. Ravenell, 448 Pa. 162, 166, 292 A.2d 365, 367 (1972); Commonwealth v. Mazzella, 231 Pa.Super. 247, 250, 331 A.2d 784, 785 (1974); see Pa.R.Crim.P. 323(h).

Commonwealth v. Silo, 480 Pa. 15, 20-21, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979). The established exceptions to the warrant requirement were recently enumerated by the Superior Court as follows:


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