Appeals from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC 8701903A, CC 8701901A, CC 8701902A.
Robert L. Eberhardt, Deputy District Attorney, and Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellant.
Michael D. Sayles, Pittsburgh, for appellee in No. 397.
Byrd R. Brown, Pittsburgh, for appellee in No. 398.
Rowley, Del Sole and Montgomery, JJ.
[ 385 Pa. Super. Page 607]
These are consolidated appeals by the Commonwealth from orders entered in each of the three above-captioned drug-related criminal cases suppressing statements of appellee Robert Chambers and contraband seized during a search of the residence of appellees, Cheryl and Robert Chambers. After thoroughly reviewing the record evidence of appellees and the uncontradicted evidence of the Commonwealth, we conclude that the evidence supports the trial court's factual findings, and that the trial court properly suppressed the evidence as a matter of law. See Commonwealth v. Pine, 370 Pa. Super. 410, 536 A.2d 811 (1988).
The Commonwealth argues that: 1) there is no evidence to support the trial court's factual finding that the police opened the door to the Chambers house simultaneous with the announcement of their identity and purpose; 2) consequently there is no support for the trial court's legal conclusion that Pa.R.Crim.P. 2007 (the knock and announce rule) was violated; and 3) even if Rule 2007 was technically violated, the violation did not amount to a constitutional violation warranting suppression of the evidence.
[ 385 Pa. Super. Page 608]
The Commonwealth has the burden at a suppression hearing of proving by a preponderance of the evidence that the search or seizure of the evidence was legitimate and that the evidence therefore is admissible. Commonwealth v. Eliff, 300 Pa. Super. 423, 446 A.2d 927 (1982). In the present case, the only evidence relating to the propriety of the execution of the search warrant of the Chambers' home is the following: one plain-clothes detective (Detective Frank) and one uniformed police officer (Officer Bruce), with their guns drawn, knocked on the front door of the Chambers home. According to the testimony of Detective Frank, the following then transpired:
And when Mr. Chambers opened the door, I said, "Police officers. We have a search warrant for the premises." With that -- and he had the door partially opened. And I pushed the door, pushed him back, and I said, "Get up against the wall and don't [sic] move." For safety of the officers.
Suppression transcript, p. 58. Very shortly thereafter, two other plain-clothes detectives who had been at the side of the house, also came through the front door. At some later time a second, uniformed police officer, who had been standing guard at the back door, also entered the house. The only reason the guns were drawn when Detective Frank and Officer Bruce entered the house was that "When we go into any house to execute a search warrant we don't know what we are going to encounter on the other side of the door." Suppression Transcript, p. 58.
Based on the fact that the only evidence produced by the Commonwealth to establish the timing of the entry into the house, was the phrase "with that," and considering that it was the Commonwealth's burden to establish the propriety of the execution of the warrant, we find that the record supports the trial court's conclusion that the door was pushed open simultaneous with the announcement by Detective Frank of his identity and purpose. There is no ...