J-A25020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ASHLEY LAUREN WILMER,

                            Appellant                 No. 296 MDA 2016


           Appeal from the Judgment of Sentence February 16, 2016
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0003487-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 05, 2016

       Appellant, Ashley Lauren Wilmer, appeals from the February 16, 2016

judgment of sentence entered following her conviction at a bench trial of

possession of drug paraphernalia. Following our careful review, we affirm.

       The trial court summarized the facts of the crime as follows:

             On October 27, 2013, Pennsylvania State Trooper Charles
       D. Smolleck and Trooper Shoap were on foot patrol in the
       Cumberland County portion of Shippensburg, Pennsylvania. The
       Troopers came upon [Appellant’s] residence, a sorority house,
       and observed multiple individuals standing on the roof yelling
       incoherently. Trooper Smolleck also noted a young man who
       appeared severely intoxicated who was unsteadily climbing on
       the roof about twenty feet from the ground.

            Trooper Smolleck was afraid that the young man was
       about to fall off the roof and injure himself severely, possibly
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     dying. He and Trooper Shoap approached the front door of the
     residence and sought permission to enter, but none of the
     people inside would open the door for them. At that time,
     Trooper Shoap attempted unsuccessfully to kick in the door.
     Then, fearing the imminent danger to the young man’s safety,
     Trooper Shoap broke a side window and entered the residence,
     immediately heading upstairs to safeguard the young man. In
     their efforts to reach the roof, the Troopers were forced to
     remove and possibly damage an air conditioning unit from a
     window. Unfortunately, by the time they arrived at the rooftop,
     the young man had already fallen and was being treated by first
     responders.

            At this point the Troopers retraced their steps and exited
     the residence. While they were exiting, Trooper Smolleck noted
     a baggie of marijuana and a marijuana grinder sitting in plain
     view on a coffee table. He seized the evidence and brought it
     outside to a patrol vehicle where he placed it in a secure
     location. Ultimately, these items would not form the basis for
     the charges against [Appellant].

            After securing the evidence, Trooper Smolleck reentered
     the residence and began trying to identify an actual resident of
     the house for the purpose of filing an incident report. This was a
     less than straightforward task as most of the people present
     claimed they were only visitors to the house. Once inside, he
     approached [Appellant’s] bedroom and knocked on the door. He
     did this without any intention of arresting [Appellant] or anyone
     else in the residence, but to document any residents’ names for
     his incident report relating to the damage to the window and air
     conditioning unit caused by the Troopers in the furtherance of
     their duties.

          After [Appellant] admitted to being a resident of the
     house, Trooper Smolleck began to take down her information.
     During their conversation the Trooper noted a glass marijuana
     bong and a paraphernalia pipe sitting in plain view. When
     asked, [Appellant] admitted to ownership of the contraband. On
     that basis, Trooper Smolleck charged [Appellant] with the
     possession of drug paraphernalia.

Trial Court Opinion, 4/19/16, at 1–3.




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      Appellant was charged with one            count of possession of drug

paraphernalia, 35 P.S. § 780-113(a)(32), an ungraded misdemeanor.

Appellant filed a motion to suppress evidence on May 15, 2015; the court

held a hearing on July 6, 2015, following which it denied the motion.

Appellant proceeded to a stipulated nonjury trial and was found guilty as

charged on February 16, 2016. The trial court sentenced Appellant to pay

the costs of prosecution and a $50.00 fine. Appellant filed a timely notice of

appeal on February 19, 2016; both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following single issue for our review:

       I.   Did the suppression court make an error of law in denying
            Appellant’s motion to suppress where the police entry into
            Appellant’s residence was without consent, a warrant, or
            exigent circumstances?

Appellant’s Brief at 5 (full capitalization omitted).

      Appellant assails the trial court’s denial of her suppression motion.

      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, 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.

Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015).

Moreover, on October 30, 2013, our Supreme Court in In re L.J., 79 A.3d
1073 (Pa. 2013), clarified that the scope of review of orders granting or


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denying motions to suppress is limited to the evidence presented at the

suppression hearing.    Because Appellant’s suppression hearing post-dates

the filing date of L.J., which was held to be prospective, L.J. applies to this

case. Commonwealth v. Caple, 121 A.3d 511, 517 n.1 (Pa. Super. 2015).

      Appellant acknowledges that the troopers’ initial entry into the

residence, where Trooper Shoap broke a window so that he could unlock the

front door, was effectuated in order to remove an intoxicated person who

was in danger of falling from the porch roof of the residence. The people

inside of the house, who were laughing at the troopers, refused to open the

door to admit them.      N.T. (Suppression), 7/6/15, at 10.       Nevertheless,

Appellant claims that while Trooper Smolleck believed the individual was in

danger of falling from the roof and that entry into the residence was

necessary to safely remove him, there was no evidence that the individual

actually needed emergency aid or that he requested assistance from the

troopers. Appellant’s Brief at 10.

      Appellant also maintains that the trooper’s second entry, which

occurred after the individual on the roof had indeed fallen, was without

consent, warrant, or exigent circumstances, and was therefore unlawful.

She suggests that any exigency giving rise to the initial entry had dissipated.

Appellant’s Brief at 15. Appellant fails to cite support for this claim. Id.

      The Commonwealth points out Appellant’s acknowledgment of the

validity of the doctrine permitting police to enter a residence without a


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warrant when they reasonably believe someone inside is in need of

emergency assistance.     Commonwealth’s Brief at 10.       It avers, however,

that Appellant disputes the applicability of the doctrine in this case.     The

Commonwealth posits that the relevant question is “whether there was an

objectively reasonable basis for believing that medical assistance was

needed, or persons were in danger.” Id.

      The Commonwealth further responds that the troopers’ reentry was a

continuation of the initial entry, which was valid. Commonwealth’s Brief at

11.   In support, it cites Commonwealth v. Witman, 750 A.2d 327, 337

(Pa. Super. 2000), where we held that when police are conducting an

investigation based on exigent circumstances, entry and reentry for

purposes of the initial investigation constitutes one continual search.

      Our   review   of   the   record   compels   our   agreement   with   the

Commonwealth and the trial court.        Appellant is incorrect regarding the

exigency of the initial entry. To claim that an exigency did not exist because

the inebriated individual(s) did not ask for help has no bearing in fact or

reason. This event occurred after midnight, the seven people on the bi-level

roof were screaming and yelling, one individual was separated from the

other six and was stumbling, running back and forth, was visibly intoxicated,

and he ignored police instructions. N.T. (Suppression), 7/6/15, at 3–9.

      “Generally, the police will be excused from compliance with the
      warrant and probable cause requirements of the Fourth
      Amendment to the United States Constitution in only limited
      circumstances. One of these circumstances is when the police

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     reasonably believe that someone within a residence is in need of
     immediate aid.” Commonwealth v. Galvin, 603 Pa. 625, 985
A.2d 783, 795 (2009), cert. denied, 559 U.S. 1051, 130 S. Ct.
2345, 176 L. Ed. 2d 565 (2010) (citations omitted). Additionally,
     “it is widely recognized that situations involving the potential for
     imminent physical harm in the domestic context implicate
     exigencies that may justify limited police intrusion into a
     dwelling in order to remove an item of potential danger.”
     Commonwealth v. Wright, 560 Pa. 34, 742 A.2d 661, 664
     (1999) (citations omitted). The relevant inquiry is “whether
     there was an objectively reasonable basis for believing that
     medical assistance was needed, or persons were in danger.”
     Michigan v. Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 175
L. Ed. 2d 410 (2009) (citation and internal quotation marks
     omitted) [emphasis added]. “The calculus of reasonableness
     must embody allowance for the fact that police officers are often
     forced to make split-second judgments—in circumstances that
     are tense, uncertain, and rapidly evolving.” Ryburn v. Huff,
     ___ U.S. ___, 132 S. Ct. 987, 992, 181 L. Ed. 2d 966 (2012)
     (citation omitted).

Commonwealth v. Potts, 73 A.3d 1275, 1280–1281 (Pa. Super. 2013)

(emphasis added).

     Here, police concern for the inebriated individual running on the roof

obviously was justified.   N.T. (Suppression), 7/6/15, at 9.    The troopers’

quick thinking in contacting “fire, and EMS and Shippensburg Borough” was

fortuitous, because as the troopers feared, by the time they were able to

gain entry to the home, that person had already fallen, and the EMS

personnel were there to render aid. Id. at 9–11.

     We reject Appellant’s suggestion that the threat of injury to the person

on the roof was “simply a possibility” and “not imminent,” and therefore,

police should have ignored the exigency because the inebriated man

obviously did not want their help.         Appellant’s Brief at 14.         Such

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abandonment of their safety objective because the party-goers at the

sorority house refused to open the door would have amounted to a

dereliction of the troopers’ duty.   “Indeed, the officers would have been

remiss in their duty had they abandoned the scene simply because no one

answered the door.” See Commonwealth v. Davido, 106 A.3d 611, 622

(Pa. 2014) (in domestic dispute case, where police officers had a reasonable

belief that person inside residence needed assistance, exigent circumstances

existed to support officers’ warrantless entry into residence).       As our

Supreme Court explained:

     The U.S. Supreme Court has recognized that the “Fourth
     Amendment does not bar police officers from making warrantless
     entries and searches when they reasonably believe that a person
     within is in need of immediate aid.” Mincey v. Arizona, 437
U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). See also
     Commonwealth v. Miller, 555 Pa. 354, 724 A.2d 895, 900
     (1999) (limited number of circumstances will excuse police from
     compliance with Fourth Amendment warrant and probable cause
     requirements; one such circumstance occurs when police
     reasonably believe that someone within residence is in need of
     immediate aid); Commonwealth v. Norris, 498 Pa. 308, 446
A.2d 246, 248 (1982) (warrantless entry into residence may be
     permitted, inter alia, “when the officers may in good faith believe
     that they or someone within are in peril of bodily harm.”);
     accord Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783,
     795–96 (2009).

Id. at 622. The Davido Court continued:

     We agree that “[e]rring on the side of caution is exactly what we
     expect of conscientious police officers ... where rescue is the
     objective, rather than a search for crime,” “and we should not
     second-guess the officers’ objectively reasonable decision to
     enter and search a residence without a warrant in such a case.”




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Id. at 624–625 (quoting U.S. v. Black, 482 F.3d 1035, 1040 (9th Cir.

2007)).   In light of the totality of the circumstances, police entry to the

sorority house was reasonable under the circumstances.

      We also conclude that police reentry into the sorority house was

reasonable. As the trial court observed:

      [T]he Troopers’ subsequent reentry into the residence after
      exiting to secure contraband was also justified by the exigent
      circumstances that gave rise to the initial entry. The initial
      justified warrantless entry required the Troopers to damage
      private property in the furtherance of their duty. This demanded
      a second entry to establish the identity of the residents of the
      home to file an incident report. As such, the reentry was not
      unlawful and the drug paraphernalia discovered in plain sight
      was not subject to suppression.

Trial Court Opinion, 4/19/16, at 4.

      From the time of their initial entry, the troopers were engaged in only

one endeavor with one goal—aiding the man on the roof. Once they gained

access to the house, they proceeded to the room that would give them

access to the porch roof. N.T. (Suppression), 7/6/15, at 11. To reach the

man, to even see the man, they had to remove a window air conditioner

unit. Id. Once they removed it, “the individual was gone, and we observed

him laying flat on his back on the ground with the fire and EMS [personnel]

tending to him and bringing a stretcher and a neck brace for the individual.”

Id.

      Trooper   Smolleck    testified,    “We   turned   around     to   exit   the

residence . . . . [W]e retraced our steps back downstairs.        At that point is


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whenever I saw . . . a small baggie of marijuana and a marijuana grinder” in

plain view. N.T. (Suppression), 7/6/15, at 12. Trooper Smolleck placed the

contraband in his patrol car, and as stated supra, this contraband did not

form the basis for the charge against Appellant. Because the troopers had

broken a window to gain access and damaged the air conditioner unit, they

had to complete an incident report. Trooper Smolleck testified as follows:

            Because now we need[ed] to type up an incident report
      stating the reason the window was broken, the reason that we
      needed to gain entry, and then if the air conditioner was broken
      from us pulling it out of the window, possibly why the air
      conditioner was broken. We needed all the individuals [who]
      lived there for the incident report and documentation to the
      Commonwealth on the damages to the building.

Id. at 13. Thus, Trooper Smolleck returned to the house and knocked on an

interior door, which was opened from the inside. Id. at 14. He asked “who

lived at the residence”; Appellant raised her hand and “approximately five

other young ladies in there . . . said we are just here visiting.” Id. Trooper

Smolleck explained his purpose of documenting names for the incident

report, and Appellant said, “Okay, that’s fine, I will give you my

information.” Trooper Smolleck continued, “At that point I started to gather

her information, and in plain view on a nightstand beside her was a glass

marijuana bong and a paraphernalia pipe, at which point I asked whose that

was and [Appellant] said that it was hers.” Id. The bong and pipe formed

the basis for the instant charge. Id.




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      There was no unwarranted delay in time, nor was there any purposeful

search. The items taken into the custody of police were in plain view as the

trooper completed his report.    We reiterate that when police are properly

authorized to enter a dwelling under the exigent circumstances doctrine,

they are also authorized to return to complete the necessary paperwork

required by the emergency situation that allowed them to enter the dwelling

in the first place. It was entirely reasonable for Trooper Smolleck to reenter

the sorority house to obtain the name(s) of people who lived there in light of

the forced damage to the property. While in the house for this legitimate

purpose, the officers observed in plain view drug paraphernalia. There was

no inspection of drawers or closets; indeed, there was no search at all. The

officers’ immediate return to the residence would seem to be normal and

reasonable police procedure under the circumstances.       Trooper Smolleck’s

reentry into the sorority house and seizure of contraband in plain view did

not exceed the bounds permissible under the exigency rule. Furthermore,

Trooper Smolleck’s return to complete his report merely was part of one

continuous episode, initially justified by exigent circumstances.     Appellant

cites to no controlling case law, and there is no logical basis for holding that

a single entry is mandated under these circumstances, nor any rule that

prohibits an officer, legitimately on the premises, from returning to the

residence to perform the police functions which are then immediately

justified and required.   Cf. Witman, 750 A.2d at 337 (where police are


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conducting a valid search pursuant to a defendant’s implied consent, the

initial investigation in its entirety is permissible and such an investigation

may require officials “to remain on the scene for an extended period of time

repeatedly entering or re-entering the building . . . .”) (citing Michigan v.

Tyler, 436 U.S. 499, 510 n.6 (1978)).

      Accordingly,   we   conclude   that     the   trial   court   properly   denied

Appellant’s motion to suppress evidence. Therefore, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2016




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