Com. v. Parsons

• Decision Date: 02 May 1990
• Citation: 570 A.2d 1328,391 Pa.Super. 273
• Parties: COMMONWEALTH of Pennsylvania v. Chester C. PARSONS, Appellant.
• Court: Pennsylvania Superior Court

Page 1328

570 A.2d 1328

391 Pa.Super. 273

COMMONWEALTH of Pennsylvania v. Chester C. PARSONS, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 28, 1989.

Filed March 7, 1990.

Reargument Denied May 2, 1990.

Lawrence R. Dworkin, Chester, for appellant.

Joseph A. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.

Before CAVANAUGH, BROSKY and BECK, JJ.

BECK, Judge.

After a bench trial, appellant Chester Clayton Parsons was convicted of possession of drug paraphernalia, ¹ possession of a controlled substance ² and possession of a controlled substance with intent to deliver. ³ He was sentenced to six to twelve months for possession of drug paraphernalia and fifteen to thirty months for possession of a controlled substance and possession of a controlled substance with intent to deliver; ⁴ these sentences to run concurrently. Appellant appeals these convictions.

Appellant first contends that evidence seized by the police pursuant to a valid search warrant should have been suppressed based upon the police having violated the "knock and announce" rule by entering his house before a reasonable period of time had elapsed and absent exigent circumstances. Appellant also contends that the record contains insufficient evidence to establish that he possessed cocaine with intent to deliver. We find both of these contentions to be meritless.

At approximately 9:00 p.m., Detective Lawrence Hughes, along with other police officers, executed a search warrant at 889 Concord Road in Delaware County. Detective Hughes, accompanied by the other officers, knocked on the door of the residence and announced "Police Officers. I have a search warrant." Suppression Transcript, at 12. After approximately a forty-five second delay, during which time movement from inside the house was heard, Detective Hughes again announced "Police. Search Warrant." Id. After more movement was heard emanating from inside the apartment and still no one opened the door, the police opened the door with a sledge hammer and entered the house.

Once inside the house, the police saw appellant who was not dressed, but had a bedspread or sheet wrapped around himself. Also in the house were appellant's girlfriend, Kelli L. Johnson, and their daughter. The items seized by the police included an electronic scale, a box of plastic bags, ziplock bags, a quarter pound bag of marijuana, other quantities of marijuana in a jar and on a dish, a box containing 7.2 grams of cocaine, packaging materials and notebooks with tally sheets. In addition, appellant consented to a police search of his Ford truck, which was parked at the rear entrance of the home. In the glove compartment of the car the police found approximately $1,500.00 in cash. Detective Hughes testified that the items seized from the home and the car were consistent with the sale and distribution of controlled substances, rather than with the mere possession of controlled substances. Id. at 14.

Appellant first contends that the items seized from 889 Concord Road should have been suppressed due to the police' violation of the "knock and announce" rule. Appellant argues that the police failed to await a response from within the house for "a reasonable period of time." In addition, appellant claims that the movement the police heard from inside the apartment did not create exigent circumstances warranting a forced entry. Absent the wait of a reasonable period of time or exigent circumstances, appellant contends, the forced entry violated Rule 2007 of the Rules of Criminal Procedure. Appellant claims, therefore, that the items seized as a result of that entry must be suppressed. ⁵

The trial judge concluded that the movement the police heard emanating from within the house provided the police with reasonable grounds for believing that evidence was being destroyed. Trial court op. at 2. The judge concluded that exigent circumstances existed which justified forced entry. Id.

Although the trial court did not consider whether the police waited a reasonable length of time after announcing their "identity, authority and purpose", we are free to affirm the trial court for any reason. Commonwealth v. Chambers, 385 Pa.Super. 605, 610-12, 561 A.2d 1257, 1260 (1989), appeal granted, --- Pa. ---, 567 A.2d 650 (1989). Our review of the record reveals that the police satisfied the requirements of Rule 2007 by waiting "a reasonable period of time after" announcing their "identity, authority and purpose".

In reviewing an appeal from a suppression ruling:

we must determine whether the factual findings 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.

Commonwealth v. Whitney, 511 Pa. 232, 239-40, 512 A.2d 1152, 1156 (1986), quoting Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985). See also Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987); Commonwealth v. Markovitch, 388 Pa.Super. 244, 565 A.2d 468 (1989).

At the suppression hearing, Detective Hughes testifed that after knocking on the door and identifying that he was a police officer with a search warrant, he waited at least forty-five seconds. During that time, while no one answered the door, Detective Hughes testified that he heard movement, which sounded like footsteps, emanating from the house. Detective Hughes testified that he again knocked on the door and stated that he was a police officer and that he had a search warrant. After hearing more movement from inside the house but receiving no response from inside the home, the police forced the door open and entered the dwelling. We are now asked to consider whether the actions of the police violated the "knock and announce" rule. We conclude that the police officers' actions did not violate the "knock and announce" rule and affirm the trial court's ruling admitting the evidence seized as a result of the search of the dwelling.

Rule 2007 of the Rules of Criminal Procedure constitutes a codification of the "announcement" rule which the Fourth Amendment to the United States Constitution requires. Commonwealth v. Golden, 277 Pa.Super. 180, 183-85, 419 A.2d 721, 723 (1980). This rule provides:

(a) 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.

(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.

(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

Pa.R.Crim.P. Rule 2007.

At the suppression hearing, the Commonwealth possesses the burden of establishing by a preponderance of the evidence that the search or seizure of the evidence satisfied the mandates of Rule 2007 and, therefore, that the evidence sought to be admitted is admissible. Chambers, 385 Pa.Super. at 606-08, 561 A.2d at 1258. Initially, we note that whether the Commonwealth met this burden requires a fact-specific approach. We commence our analysis with a discussion of the underlying purposes of Rule 2007.

"The purpose[s] of the 'knock and announce' rule," as articulated by this court in Commonwealth v. Morgan, supra "[are] to prevent violence and physical injury to the police and occupants, to protect an occupant's privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry." Morgan, 517 Pa. at 97, 534 A.2d at 1056. It has also been stated that even where the police announce both their identity and purpose, as was the case in the instant appeal, forcible entry remains impermissible if the occupants of the premises sought to be entered have not been provided with the opportunity to relinquish the premises voluntarily. Commonwealth v. DeMichel, 442 Pa. 553, 561, 277 A.2d 159, 163 (1971), citing United States ex rel. Manduchi v. Tracy, 350 F.2d 658, 662 (3d Cir.1965), cert. denied sub nom. Manduchi v. Tracy, 382 U.S. 943, 86 S.Ct. 390, 15 L.Ed.2d 353 (1965). The critical inquiry then, is whether sufficient time elapsed for the police to form a reasonable belief that the occupants of the premises did not intend to surrender the premises peaceably or voluntarily. DeMichel, 442 Pa. at 560-62, 277 A.2d at 163.

We conclude that the record contained sufficient evidence for the trial judge to have concluded that at the suppression hearing the Commonwealth established by a preponderance of the evidence that the police reasonably believed that the occupants of the premises did not intend to surrender the premises voluntarily, thus warranting the forced entry effectuated by the police. We base this conclusion upon the police having articulated their identity, authority and purpose twice, the more than forty-five seconds which had elapsed from when the police first knocked on the door to when they forcibly entered the dwelling, and the movement the police heard emanating from inside the apartment ⁶.

In examining a claim that Rule 2007 has been violated, the first step is to consider whether the law enforcement officers provided notice to the occupants of the premises to be searched. ⁷ At the suppression hearing, Detective Hughes testified that he twice knocked on the door and announced that it was the police and that they had a search warrant....