Commonwealth v. Chisholm

198 A.3d 407

COMMONWEALTH of Pennsylvania

v.Nicholas R. BOYD CHISHOLM, Appellant

No. 964 MDA 2016

Superior Court of Pennsylvania.

Submitted May 1, 2017

Filed October 30, 2018

Reargument Denied January 3, 2019

Joseph M. Sembrot, Harrisburg, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER,^* J.

OPINION BY OTT, J.:

Nicholas R. Boyd Chisholm¹ appeals from the judgment of sentence imposed on June 1, 2016, in the Dauphin County Court of Common Pleas. The trial court sentenced Boyd Chisholm to an aggregate term of three to seven years' imprisonment following his non-jury conviction of persons not to possess firearms, possession with intent to deliver ("PWID") marijuana, and possession of drug paraphernalia.² On appeal, Boyd Chisholm contends the trial court erred in denying his motion to suppress the evidence obtained following an illegal search of his residence. In a memorandum decision filed on August 4, 2017, we affirmed Boyd Chisholm's judgment of sentence. See Commonwealth v. Boyd Chisholm , 175 A.3d 1050 (Pa. Super. 2017) (unpublished memorandum). However, by Order entered May 16, 2018, the Pennsylvania Supreme Court vacated our decision, and remanded the appeal for further consideration in light of its recent decision in Commonwealth v. Romero , ––– Pa. ––––, 183 A.3d 364 (2018). See Commonwealth v. Boyd Chisholm , ––– Pa. ––––, 186 A.3d 938 (2018). For the reasons below, we now vacate the judgment of sentence, reverse the order denying suppression, and remand for a new trial.

The facts underlying Boyd Chisholm's arrest and conviction were summarized by the trial court as follows:

The charges in this case stem from the Dauphin County Sheriff Department's attempt to serve an arrest warrant on Antonio Foster at 2435 Fourth Street, Harrisburg, PA.^[3] Specifically, the warrant was for a domestic relations violation[, failure to pay support].

... Terry Shipman of Dauphin County Domestic Relations Office (DRO) [testified] regarding the process of obtaining an arrest warrant for an individual. When a person owes child support and fails to appear for their court proceeding, a warrant is obtained. The initial part of the scheduling process is looking up the address that the DRO has on file. They receive addresses in different ways; sometimes from the individuals themselves, from the other party in the case, or a third party. Before it is used as a valid address, DRO verifies it with the United States Post Office that it is indeed a good address. A standard form, developed and utilized by the DRO, is printed out that includes the individual's name and address in question. The DRO sends that to the Postmaster for the particular postal jurisdiction and asks for verification of mail being delivered to that address. In this case, the DRO used the same address that was used for Mr. Foster's court notice, the same address that was provided to the Dauphin County Sheriff's Office. The address would have been verified with the United States Postal Service prior to sending out the notice for Mr. Foster's contempt hearing. Mr. Shipman testified that there was a note in the DRO computer system that in late April of 2014 Mr. Foster was the one who called in and self-reported his address (2435 Fourth Street). If the mail is not returned to the post office, there is an assumption that it was received.

Daine Arthur of the Dauphin County Sheriff's Office also testified at the suppression hearing. Assigned to the Warrant Unit, Deputy Sheriff Arthur was given a Domestic Relations warrant for Antonio Foster, at the address of 2435 Fourth Street, Harrisburg, PA. Deputy Sheriff Arthur testified that he has executed hundreds of domestic relations warrants and that the addresses are very reliable. Deputy Sheriff Arthur executed the warrant on November 10, 2014. When he arrived at the address listed on the warrant, Deputy Sheriff Arthur took a position at the rear of the property with Corporal Darin Sherfey. Deputies Dean Sullivan and Brock Fasnacht stayed to the front of the residence. Deputy Fasnacht radioed Deputy Sheriff Arthur to come around front. Deputy Sheriff Arthur did so, and encountered [Boyd] Chisholm. He informed [Boyd Chisholm] that he had a warrant for Antonio Foster. [Boyd Chisholm] told Deputy Sheriff Arthur that Mr. Foster did not live there. At that point, Deputy Sheriff Arthur told [Boyd Chisholm] that the address on the warrant was the only one they had for Mr. Foster, and that they would have to do a walk-through to make sure Mr. Foster was not there. [Boyd Chisholm] again told the authorities that Mr. Foster doesn't live there, and that he never lived there. Deputy Sheriff Arthur also testified, "In my experience, a lot of times when people say that a certain individual doesn't live there, it's not always a hundred percent true," and that it frequently happens that individuals lie about someone being inside the house. Therefore, Deputy Sheriff Arthur explained again that the authorities had to do a check of the property to make sure Mr. Foster was not there. At that point, [Boyd Chisholm] was inside the house and the sheriffs were on the front porch. [Boyd Chisholm] stepped aside, said okay, and allowed Deputy Sheriff Arthur, and Deputies Fasnacht and Sullivan into the home.^[4]

Upon entry into the property, [Boyd Chisholm] made the statement, "Please don't arrest me." When Deputy Sheriff Arthur asked why, [Boyd Chisholm] stated that he had weed upstairs in his room. [Boyd Chisholm] then led Deputy Sheriff Arthur to his room and pointed out the green leafy substance on his bed. The substance was packaged in clear plastic gallon bags, and there was loose leafy green material on a scale on a nightstand. Everything was in plain view. Deputy Sheriff Arthur radioed Dauphin County Dispatch informing them that he needed a city officer at his location. After the Harrisburg Police arrived, the officers did an additional search. Deputy Sheriff Arthur was not present for this. Deputy Sheriff Arthur also testified that [Boyd Chisholm] was very cordial, well-spoken, and not aggressive.

[ ] Boyd[ ]Chisholm also testified. He stated that when he opened his door, the sheriffs told him they had a warrant for Mr. Foster, to which he responded that Mr. Foster did not live there and they could not enter. [Boyd Chisholm] tried to shut the door, and one of the sheriffs put his foot inside the door and told [Boyd Chisholm] he had a warrant for him, and that they were coming in. [Boyd Chisholm] said that at that point, one of the sheriffs radioed for Deputy Sheriff Arthur to come around to the front. As soon as Deputy Sheriff Arthur started talking to [Boyd Chisholm], the officer who had his foot in the door walked into the home. [Boyd Chisholm] testified that he did not resist or fight him.

Trial Court Opinion, 11/15/2016, at 1-4 (record citations omitted). Mr. Foster was not found in the residence, and, in fact, provided a different address two days later, on November 12, 2014, when he arrived at the Domestic Relations Office to "pay his purge and have his warrant lifted." N.T., 6/15/2015, at 20.

Boyd Chisholm was subsequently charged with persons not to possess firearms, PWID, and possession of drug paraphernalia.⁵ On April 1, 2015, he filed a pre-trial motion to suppress the evidence obtained during the search of his home, arguing the arrest warrant for Foster did not provide the police with sufficient justification to search his residence. The court conducted a suppression hearing on June 15, 2015, and entered an order on August 4, 2015, denying Boyd Chisholm's motion to suppress. The trial court later found Boyd Chisholm guilty of the aforementioned offenses following a non-jury trial conducted on March 21, 2016. On June 1, 2016, Boyd Chisholm was sentenced to a term of three to seven years' imprisonment for the firearms offense, and a concurrent term of one to five years' imprisonment for PWID. No further penalty was imposed on the count of possession of paraphernalia. This timely appeal follows.⁶

Boyd Chisholm's sole issue on appeal challenges the trial court's denial of his motion to suppress. Specifically, he argues, pursuant to the Supreme Court's decision in Romero , supra , the law enforcement officers in the present case unlawfully entered and searched his home; accordingly, all evidence recovered during the search must be suppressed. See Boyd Chisholm's Brief at 19.

Our standard of review is well-settled:

[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, [the appellate court] is bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to [ ] plenary review.

Commonwealth v. Mason , 130 A.3d 148, 151–152 (Pa. Super. 2015) (quotation omitted), appeal denied , 635 Pa. 772, 138 A.3d 3 (2016).

As a general rule, absent limited exceptions such as consent or exigent circumstances, the police must obtain a warrant before searching a residence. See Commonwealth v. Caple , 121 A.3d 511, 517 (Pa. Super. 2015). Whether an arrest warrant alone...