Argued December 10, 2014
As Corrected June 3, 2015.
Appeal from the Judgment of Sentence, Entered October 4, 2013, in the Court of Common Pleas of Westmoreland County, Criminal Division at No(s): CP-65-CR-0001600-2012. Before MILLIN, J.
William C. Gallishen, Sr., Greensburg, for APPELLANT.
James T. Lazar, Assistant District Attorney, Greensburg, for Commonwealth, APPELLEE.
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
Dominick William Haynes appeals from the judgment of sentence of twelve to thirty years incarceration after a jury found him guilty of four counts of possession with intent to deliver (" PWID" ), two counts of corrupt organizations, and one count of criminal conspiracy and hindering apprehension. After careful review, we vacate the judgment of sentence and remand for resentencing. In all other respects, we affirm.
The relevant facts pertaining to Appellant's issues are as follows. Pennsylvania State Police conducted a warrantless entry into an apartment. Specifically, Trooper Jeffrey Brautigam was conducting surveillance on February 22, 2012, outside the Hawksworth Garden Apartments in Greensburg, Westmoreland County. Approximately one and one-half hour earlier, two other troopers had been surveilling the apartments and witnessed drug sale activity. Those officers followed the buyer and performed a traffic stop. The driver was found with heroin and indicated that he bought the heroin from a woman at the Hawksworth apartments.
Trooper Brautigam, as part of his surveillance, observed a woman exit Building B of the apartments and meet a series of individuals in the parking lot. He indicated that he had seen hundreds of drug transactions transpire and described the woman's interactions with these individuals as drug transactions. Trooper Brautigam testified that the female, later identified as Kristin Weightman, would exit the apartment building and a car would pull into the parking lot. Weightman would then hand something to the driver or passenger and the passenger would hand something to her. The car would then leave, and Weightman would return to the building. This occurred three times.
At the time, Trooper Brautigam also had information that another individual, Chauncy " Gunner" Bray, was in the area with Weightman. Trooper Brautigam knew Bray from past encounters and was
told that Bray may be in possession of a firearm. Trooper Edward Malloy witnessed which apartment Weightman entered and relayed that information to Trooper Brautigam. Trooper Brautigam and Trooper Malloy then watched Weightman meet a white male, later identified as Kurt McCamley, and return to the apartment building. Police intended to question Weightman before she entered the apartment, but were unable to intercept her. Trooper Brautigam then elected to knock on the door to speak with Weightman. As the two officers approached, Trooper Brautigam smelled burning marijuana emanating from inside the apartment.
Trooper Brautigam knocked on the door and an individual asked who it was. He responded that he needed to speak to the renter and heard rumbling inside. He then identified himself as the police and asked that someone open the door. Those inside would not answer the door, and, according to Trooper Brautigam, they became quiet. After twenty to thirty seconds, the police kicked open the door. Entry occurred at approximately 12:30 in the afternoon. Bray attempted to flee and toss money away but was captured. Four other males were inside, including Appellant, as were Weightman and McCamley. In plain view was a plastic bag with nine bricks of heroin, money on the sofa, and burnt marijuana blunts on a window sill. Thereafter, police secured a search warrant for the apartment and questioned those present. Appellant maintained that he was just visiting and that the drugs were not his. The heroin inside the apartment was confirmed to weigh 7.8 grams.
Appellant unsuccessfully litigated a suppression motion and proceeded to trial with one other individual, James Moore. A different judge presided over the jury trial. As part of the investigation into the same drug ring, police, on the same day as the apartment raid, conducted a warrant-based search of another apartment rented by a Nicole Dudek. They recovered six bricks of heroin, suboxone, money, and cell phones. Police then called Dudek and informed her of their discovery. She did not turn herself in at that time and stayed with Moore for five days and Appellant for one night. Thereafter, she did turn herself in to the authorities. Additional testimony from several drug addicts indicated that Appellant was involved in the sale of heroin.
The jury found Appellant guilty of the aforementioned charges. The court sentenced Appellant to twelve to thirty years imprisonment, including a mandatory minimum sentence relative to the weight of the drugs involved. The jury was not instructed to make a finding regarding the weight of the drugs. Appellant filed a timely post-sentence motion, which the court denied. This appeal ensued. The trial court and Appellant complied with Rule 1925. Appellant raises four issues for this Court's review.
I. Whether the honorable trial court erred in failing to suppress the fruits of the raid on the Hawksworth Garden Apartments?
II. Whether the honorable trial court erred in failing to dismiss all of the charges filed against the Defendant as being the fruits of the illegal search and seizure at the Hawksworth Garden Apartments?
III. Whether the honorable trial court issued an illegal sentence by imposing a mandatory minimum sentence at count 16 whenever the predicate facts necessary for an
enhanced sentence were not submitted to the jury or found to exist beyond a reasonable doubt?
IV. Whether the honorable trial court erred in failing to grant the motion for judgment of acquittal of the harboring a fugitive charge?
Appellant's brief at 6.
Appellant's first two claims pertain to the suppression of evidence. 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, 2012 PA Super 53, 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.
Appellant argues that the warrantless search of the apartment violated both his Fourth Amendment and Article I, § 8 right to be free from unreasonable searches and seizures. However, his main focus is on the Pennsylvania Constitution. In this respect, he maintains that the Pennsylvania charter provides greater protections than the Fourth Amendment. In support, he relies on Commonwealth v. Demshock, 2004 PA Super 263, 854 A.2d 553 (Pa.Super. 2004), and Commonwealth v. Waddell, 2012 PA Super 252, 61 A.3d 196 (Pa.Super. 2012), and distinguishes the United States Supreme Court decision in Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011).
Ordinarily, law enforcement must obtain a warrant before conducting a search. Commonwealth v. Lagenella, 623 Pa. 434, 83 A.3d 94, 102 (Pa. 2013). In this respect, warrantless searches are generally presumed unreasonable. Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261, 1266 (Pa. 2001). Nonetheless, there are exceptions to the warrant requirement, including those situations where probable cause exists in conjunction with exigent circumstances. Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993, 999 (Pa. 1999).
In Demshock, police received complaints of a car theft and vandalism in the area of an apartment complex. A detective was patrolling the area on foot as a result. While doing so, he walked past an apartment and observed through a one-foot vertical blind of a sliding door what appeared to be teenagers drinking beer. Based on this observation, he radioed other officers who were patrolling the complex. While covering the apartment's peep hole, the detective knocked on the door. A person inside asked who it was and the detective said, " hey man, it is me." Demshock, supra at 554. An individual opened the door slightly and looked outside. Upon seeing that it was police, the person stepped back and police pushed the door open and entered. Police then saw marijuana in plain view.
The trial court denied a suppression motion, and Demshock was found guilty of possession of marijuana and underage drinking. This Court reversed on appeal, finding that the entry into the apartment violated the Fourth Amendment. We noted that the detective did not testify that he entered the apartment to prevent the destruction of evidence. See id. at 556. The Demshock panel continued, " Here, the officers observed the illegal activity from outside the premises without the occupants detecting their presence. Under these circumstances, the officers could have made efforts to secure a search warrant and quite possibly could have secured a warrant prior to any of the partygoers realizing that the police were outside." Id. at 557. According to the Demshock Court, if an exigency existed therein, once police
had probable cause, " police could simply knock upon the door rather than go through the trouble of obtaining a warrant." Id. at 558. It continued stating, " The Fourth Amendment could be made substantially impotent if this were the case." Id.
In Waddell, this Court, relying on Demshock, ruled that suppression was warranted on Fourth Amendment grounds where the police created their own exigency by knocking and announcing. The facts in Waddell are as follows. Police in Homestead, Allegheny County, received information from a neighboring police officer that large amounts of marijuana were being sold from a house at 314 West 12th Avenue. Homestead's Chief of Police contacted an informant who confirmed that the house was used to sell narcotics and maintained that there were two black males transporting marijuana from the house. The informant further provided a description of the car. Police stopped the car described by the informant several blocks from the house. Two individuals were arrested for being in possession of thirteen pounds of marijuana. In addition, police located a firearm. One of those men indicated that he got the marijuana " up on the hill, at the little house." Waddell, supra at 209.
Homestead police and Munhall officers travelled to 314 West 12th Avenue. As they approached, a strong odor of marijuana was detected coming from the house. Police knocked on the door and, after hearing no response, discerned the sound of slight movement inside. Police knocked twice more, the final time stating that it was the police and asking someone to open the door. At that time, more movement was heard and another officer radioed that a person had jumped out of a window from the rear of the home. Based on the belief that someone inside might destroy evidence or retrieve a gun, police kicked in the door and entered the house. Two handguns, an AK-47 magazine, and marijuana were in plain view. Citing Demshock, the panel stated, " It is well established that police cannot rely upon exigent circumstances to justify a warrantless entry where the exigency derives from their own actions." Waddell, supra at 214. The Waddell panel added that, " Hurried movement does not provide a strong inference that evidence was being destroyed[.]" Id. at 216.
The court continued that it was reasonable to assume that the " 'knock and talk' was conducted with the hope that events would transpire in such a fashion as to obviate the warrant requirement altogether." Id. at 217. It further reasoned, " To prevent dilution of the sanctity of a citizen's home, the core element of the Fourth Amendment, we must remain vigilant against attempts by police to actively seek out exigency, no matter how well-intentioned their efforts might be." Id. The Waddell Court did not discuss King, nor did the Commonwealth brief that case.
In King, police set up a controlled buy of crack cocaine outside an apartment complex. An undercover officer watched the transaction occur and then radioed to uniformed officers to arrest the suspect. The officers were unable to stop the person before he entered an apartment. Unlike this case, police did not see which apartment the suspect entered, but heard a door close and detected a very strong odor of marijuana ...