Com. v. Days

• Decision Date: 09 September 1998
• Citation: 718 A.2d 797
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Bernadette DAYS, Appellant.
• Court: Pennsylvania Superior Court

Page 797

718 A.2d 797

COMMONWEALTH of Pennsylvania, Appellee, v. Bernadette DAYS, Appellant.

Superior Court of Pennsylvania.

Submitted July 6, 1998.

Filed Sept. 9, 1998.

Gerald A. Stein, Philadelphia, for appellant.

Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for appellee.

Before EAKIN, JOYCE and TAMILIA, JJ.

JOYCE, Judge.

This is an appeal from the judgment of sentence entered after Appellant, Bernadette Days, was convicted of possession with the intent to deliver and delivery of a controlled substance, i.e., cocaine, ¹ and criminal conspiracy to commit these offenses. ² For the reasons set forth below, we affirm. The relevant facts and procedural history are as follows.

On July 6, 1992, a first-time confidential informant gave undercover narcotics Officer Bertha Ferguson information that drugs were being sold from a residence located at 4308 Wyalusing Avenue. ³ That same day, Officer Ferguson and Officer Earl Crawford went to the address to verify the reports. The officers knocked on the door and were met by Appellant, who matched the physical description given by the informant. Suppression Hearing Transcript (S.H.T.), 3/2/92 at 53-54. Officer Ferguson greeted Appellant as "Stephanie," and Appellant responded as if it were her name. Id. at 54. Ferguson and Crawford then completed a controlled buy of a white chunky substance that tested positive for cocaine. Id. at 19, 53. ⁴

Officer Ferguson then obtained a search warrant for the property. N.T. 3/2/96 at 12, 50-54; 2/7/96 at 19-23. On July 8, 1992, Officer Ferguson, Officer Crawford and other members of the Philadelphia police returned to the premises to execute the warrant. S.H.T. at 33. Upon their arrival, the officers observed Appellant sitting on the porch of the property. Id. at 13, 35. Appellant was apprehended and advised of the warrant. Id. at 14. During a search of Appellant's person, the officers obtained forty dollars and twelve (12) vials of crack cocaine from Appellant and led her into the residence. Id. at 36. Before entering, Ferguson again announced, "search warrant." Id. After the back-up officers entered, they seized forty (40) plastic vials of crack cocaine, seventy-three dollars ($73.00) in U.S. currency, and proof of Appellant's residency from an upstairs bedroom that contained female clothing. ⁵ Appellant and her son, Cory Days, were arrested and charged with various offenses arising out of this incident.

Appellant filed a motion to suppress the physical evidence seized during the search. Following a hearing on March 2, 1992, the trial court denied Appellant's motion. On February 14, 1996, a jury found Appellant guilty of the above offenses. ⁶ The trial court sentenced Appellant to a mandatory term of three (3) to six (6) years' imprisonment and a $15,000 fine. No post sentence motions were filed. This timely appeal followed.

Appellant presents the following issues for review: (1) whether the search warrant was based on probable cause; (2) whether the trial court erred in failing to suppress evidence seized pursuant to the search; (3) whether the trial court erred in failing to permit defense counsel to inquire regarding Officer Ferguson's unavailability as a witness; and (4) whether trial counsel was ineffective for failing to interview and/or call Officer Ferguson as a witness.

The first issue is whether the search warrant was based on probable cause. In determining whether probable cause exists, Pennsylvania applies the "totality of the circumstances" test. Commonwealth v. Sharp, 453 Pa.Super. 349, 357, 683 A.2d 1219, 1223 (1996). The duty of this Court is to ensure that the magistrate had a "substantial basis for concluding that probable cause existed." Id.

An affidavit for a search warrant is to be tested by this [C]ourt with common sense and a realistic manner, and not subjected to overly technical interpretations; the magistrate's determination of probable cause is to be accorded great deference on review. The law is clear that before a search warrant may issue, facts supported by oath or affirmation must be presented to the issuing officer which will justify a finding of probable cause. For the warrant to be constitutionally valid, the issuing officer must conclude that probable cause exists at the time the warrant is issued. Such a conclusion may not be made arbitrarily and must be based on facts [that] are closely related in time to the date the warrant is issued.

Commonwealth v. Baker, 532 Pa. 121, 126, 615 A.2d 23, 25 (1992) (citations and quotation marks omitted).

Probable cause is based on a finding of probability, not a prima facie showing of criminal activity. Id. The duty of this Court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Id. The magistrate may not have considered any evidence outside the affidavit in determining whether probable cause has been established. Pa.R.Crim.P. Rule 2003(a), 42 Pa.C.S.A. We will review the affidavit with the above principles in mind.

The affidavit stated that probable cause is based on the following facts and circumstances:

On this date 7-6-92, this affiant received information from a first time confidential informant who stated that a b/f called Stephanie was selling illegal drugs from 4308 Wyalusing Ave. At approx. 1:55 pm your affiant and P/O Crawford ... went to the location of 4308 Wyalusing Ave. and a b/f approx. 27-30 yrs. Was on the porch area at that location and asked both officers what did we need, at which time P/O Ferguson gave the b/f called Stephanie one prerecorded $5.00 bill and P/O Crawford ... gave the b/f one prerecorded $10.00 bill ... and then the b/f went into the location 4308 Wyalusing and then return[ed] in two minutes and gave P/O Ferguson one vial with white chunky substance with a green top and P/O Crawford (2) vials with same. Both officers left the area and returned to narcotics unit. Two items were tested by P/O's and placed on pR# 382220[sic] and submitted to Pol. Chem lab for analysis.

Search Warrant and Affidavit, 7/6/92.

In considering the "totality of the circumstances" of this case and viewing the affidavit from a commonsense, non-technical perspective, we find that the affidavit contains sufficient facts to determine that there was probable cause that Appellant had drugs at the premises. See Baker, 532 Pa. at 127, 615 A.2d at 26 (sufficient information existed for magistrate to make a neutral and detached decision whether there was a fair probability that contraband or evidence of a crime existed in a particular place based on hearsay information corroborated by officer's drug purchase). Therefore, Appellant cannot obtain relief on this basis.

Appellant's second issue concerns the trial court's refusal to suppress evidence seized during the execution of the search warrant. More specifically, Appellant asserts that police violated the "knock and announce" rule. Appellant's Brief at 3-9.

Our scope of review in evaluating the trial court's refusal to suppress evidence is [to] determin[e] whether the factual findings of the suppression court are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Thus, if sufficient evidence is of record to support the suppression court's ruling and that court has not misapplied the law, we will not substitute our credibility determination for that of the suppression court judge.

Commonwealth v. Marinelli, 547 Pa. 294, 315-316, 690 A.2d 203, 214 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998) (citation omitted). We will evaluate the suppression claim in accordance with this standard.

The knock and announce rule is embodied in Rule 2007 of the Pennsylvania Rules of Criminal Procedure which provides, in relevant part, that "a law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry." Pa.R.Crim.P., Rule 2007(a), 42 Pa.C.S.A.

The primary purpose of the knock and announce rule is to prevent resistance to lawful authority based on the occupant's efforts to protect his privacy expectation against the unauthorized entry of persons unknown to him. Commonwealth v. Carlton, 549 Pa. 174, 701 A.2d 143, 146 (1997). Additionally, the rule prevents violence and physical injury to the police and the occupants. Id. The rule also prevents property damage resulting from a forced entry during the execution of a search warrant. Id.

This Court has determined that exceptions to the knock and announce rule exist where:

1. the occupants remain silent after repeated knocking and announcing;

2. the police are virtually certain that the occupants of the premises already know their purpose;

3. the police have reason to believe that an announcement prior to entry would imperil their safety; [or]

4. the police have reason to believe that evidence is about to be destroyed.

Commonwealth v. Chambers, 528 Pa. 403, 408, 598 A.2d 539, 541 (1991). ⁷ The facts of this case indicate that the conduct of the police officers falls within the second exception to the knock and announce rule. ⁸

The goal sought to be achieved by the knock and announce rule is to alert the occupant to the presence of a person at the door and inform the occupant of that person's identity and purpose, thus allowing the opportunity for peaceful surrender of the premises without danger to officers and occupants or damage to the property. See Chambers, 528 Pa. at 409,...