from the Judgment of Sentence July 19, 2016 In the Court of
Common Pleas of Lehigh County Criminal Division at No(s):
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. [*]
John Antonio Cruz, appeals from the judgment of sentence
entered in the Court of Common Pleas of Lehigh County
following his conviction by a jury on the charges of
receiving stolen property, terroristic threats, and simple
assault, as well as his conviction by the trial court on the
charge of person not to possess a firearm. Appellant's
sole claim on appeal is that the suppression court erred in
denying his motion to suppress the handgun seized by the
police during the warrantless search of a bathroom located in
a barber shop where Appellant was employed. We affirm.
relevant facts and procedural history are as follows:
Appellant was arrested, and on June 22, 2015, he filed a
counseled pre-trial motion seeking to suppress the handgun
seized by the police during the warrantless search of a
barber shop bathroom. Specifically, Appellant contended the
police did not have probable cause for the search, there were
no exigent circumstances, and the search was not a routine
administrative inspection of the business.
October 20, 2015, the matter proceeded to a suppression
hearing at which the Commonwealth argued Appellant did not
have a legitimate, reasonable expectation of privacy in the
area from which the evidence was seized. Appellant testified
on his own behalf, and the Commonwealth presented the
testimony of Police Officer Dale Stokes, Police Officer John
Hill, and Sergeant Matt Karnish.
Appellant testified that, on February 4, 2015, he was the
manager of the Sports Cuts Barber Shop ("Sports
Cuts"), which was located on Union Boulevard in
Allentown and owned by Ruben Rodriguez. N.T., 10/20/15, at
7-8. Appellant described Sports Cuts as a "very large[,
]" busy shop with two entrances, a smoke room, a lounge,
a storage room, and a garage. Id. at 9. He testified
that, on the left side in the rear of the lounge, there was
an office, which was restricted to employees only.
Id. at 10. Appellant further testified that, in an
L-shaped hallway, Sports Cuts had two separate single
occupancy bathrooms, both of which were open to the
public. Id. at 10-11, 17.
Officer Dale Stokes testified that, on February 4, 2015, at
4:17 p.m., he received a radio call to respond to a barber
shop located on Hanover Avenue in Allentown, the Royal Cuts
Barber Shop ("Royal Cuts"), for threats
involving a handgun. Id. at 26, 33. Upon arrival at
4:22 p.m., David Purcell, who was an employee of Royal Cuts,
informed Officer Stokes that he had been sitting in a chair
at Royal Cuts with a hot towel over his face when he felt an
item being pressed against his forehead. Id. at 27,
33. When Mr. Purcell removed the towel, he discovered
Appellant, a person with whom he used to work at Sports Cuts,
pressing a handgun to his forehead.Id. at 27-28.
Stokes indicated that, in response to the information
provided to him by Mr. Purcell, he radioed for back-up, and
several uniformed officers joined Officer Stokes and his
partner, both of whom were in uniform, at a Sunoco gas
station, which was "[a] couple [of] blocks" from
Royal Cuts. Id. at 28, 34, 39. From there, the
police went to Sports Cuts with the intent of finding
Appellant; they arrived at Sports Cuts at 4:57 p.m.
Id. at 28, 34, 40. The officers surrounded the
building with a group of officers entering through the front
unlocked door. Id. at 29. Officer Stokes testified
no one told them to leave, and there were customers in the
shop. Id. While some officers proceeded to the
hallway where the bathrooms were located, Officer Stokes
proceeded to the back of Sports Cuts, where someone sitting
on a sofa told him that no one else was in the back of the
shop. Id. Officer Stokes then proceeded to the
hallway and observed Sergeant Karnish knocking on one of the
bathroom's doors. Id. at 30.
Karnish asked the occupant to come out of the bathroom, and a
male voice indicated he would be "out in a moment."
Id. at 31. Officer Stokes heard "rustling
inside the bathroom, " a couple of flushes of the
toilet, and then a loud "thump" coming from the
ceiling tiles of the hallway and bathroom area,
resulting in Officer Hill, who was standing at the end of the
hallway, becoming startled. Id. at 31, 47.
Eventually, the male, later identified as Appellant, exited
the bathroom of his own volition, and Officer Stokes
handcuffed him. Id. at 32. Officer Stokes testified
that he looked into the bathroom and observed that one of the
ceiling tiles was "off the tracks and hanging
down." Id. at 49. He admitted that the police
did not secure a warrant prior to entering Sports Cuts.
Id. at 32, 36, 49.
Officer John Hill confirmed that he met Officer Stokes and
other uniformed officers at the Sunoco gas station.
Id. at 58. He clarified that, upon arrival at Sports
Cuts, two officers entered Sports Cuts through the unlocked
front door, while he and another officer entered through an
unlocked side door. Id. at 58, 64. The police
"looked around throughout the business" in an
attempt to locate Appellant, and during the search, Officer
Hill discovered one of the bathrooms was occupied with the
door locked. Id. at 59. He could hear someone moving
around inside of the bathroom, and he confirmed that Sergeant
Karnish knocked on the door, to which the person inside
replied for him "to hold on." Id.
Hill testified that, while the police waited for the person
inside of the bathroom to exit, he "started hearing
movement in the ceiling tiles above [him]." Id.
at 60. Following the sound of the noise, he went into the
separate unoccupied bathroom, and within ten seconds, Officer
Hill heard "a loud clunk and the ceiling tiles right
above [his] head dropped about an inch." Id.
Officer Hill testified that, without standing on anything, he
"put [his] hand on the tile to see what it was that was
coming through. And as soon as [he] put even the lightest
touch on th[e] tile the gun fell out[, ]" landing on
either the toilet or floor. Id. Appellant then
exited the occupied bathroom. Id.
Matt Karnish testified that he entered Sports Cuts via the
front door and the shop was "clearly open for
business." Id. at 80. He indicated that barbers
were performing haircuts on customers, and other customers
were waiting in the lounge area. Id. Sergeant
Karnish spoke to one of the employees in the front, who
advised him that Appellant was in the rear portion of the
building. Id. at 80, 93. Sergeant Karnish "and
other officers went through the building and [they] located a
locked bathroom door[.]" Id. at 80. Sergeant
Karnish confirmed that he knocked on the bathroom door and
had "limited verbal interaction [with Appellant] with
the door being closed." Id. at 80, 87.
Sergeant Karnish waited for Appellant to exit the bathroom,
he "could hear a loud thud" coming from above his
head in the ceiling. Id. at 81-82. He then
"heard a loud metallic thud" and observed as the
handgun fell through the drop ceiling in the separate
unoccupied bathroom. Id. at 83. He clarified that he
observed Officer Hill put his hand up in an attempt to hold
the tile to prevent the handgun, which was pushing through
the tile, from falling and potentially discharging.
Id. at 101.
Karnish testified that, shortly after the handgun fell out of
the ceiling and Appellant was handcuffed, Mr. Rodriguez, who
identified himself as the owner of Sports Cuts, arrived on
the premises. Id. at 84-85, 103. Sergeant
Karnish indicated that, although the premises was "a
public place open for business[, ]...[he] wanted to be
cautious on how [he] did things[.]" Id. at 84.
Accordingly, Sergeant Karnish asked Mr. Rodriguez for consent
to search the two bathrooms, including seizing the handgun
which was lying on the bathroom floor, and Mr. Rodriguez
agreed. Id. at 84-85, 103-04.
re-took the stand, and he testified that, on the day of the
incident, Mr. Rodriguez was on the premises in the morning;
however, he left the premises with Appellant "in charge
of the establishment." Id. at 108. Appellant
testified that he arrived at Sports Cut at 7:00 a.m., where
he remained until he left for lunch at 1:30 p.m. Id.
at 114. He returned from lunch at 2:30 p.m. and remained at
the shop until the police arrested ...