Commonwealth v. Demery

1

COMMONWEALTH OF PENNSYLVANIA v. ROBERT DEMERY Appellant

No. 36 WDA 2023

No. J-A06034-24

Superior Court of Pennsylvania

May 6, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered December 5, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001859-2022

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM

BECK J.

Robert Demery ("Demery") appeals from the judgment of sentence entered by the Allegheny County Court of Common Pleas ("the trial court") after a jury found him guilty of persons not to possess a firearm.^[1] On appeal, Demery challenges the trial court's denial of his suppression motion. Because we find no error in the trial court's decision, we affirm.

The certified record reflects that on January 8, 2020, Detectives Joshua Stegena ("Detective Stegena") and Brian Nicholas ("Detective Nicholas") of the Allegheny County Police were conducting surveillance at the Harrison Village Housing Complex in McKeesport, Pennsylvania. N.T. 11/15/2021, at 4, 7. At around 3:00 p.m., a black Jeep parked in a nearby handicap space. Id. at 4-5. Steven McQueen ("McQueen") exited the passenger side of the Jeep and entered apartment 9G. Id. Approximately two minutes later, McQueen exited the apartment. Id. McQueen appeared nervous, was looking all around the complex, and was clutching something in front of his body as he returned to the Jeep. Id. at 5. The detectives then conducted a traffic stop of the Jeep for illegally parking in a handicap space. Id. at 5-6. During the stop, McQueen admitted to the detectives that he had marijuana; the detectives searched the Jeep and found it in the passenger door compartment. Id. at 6. McQueen then told the detectives that Demery was inside apartment 9G. Id. at 7.

During the stop of the Jeep, Lieutenant Sid Summers ("Lieutenant Summers") of the McKeesport Police Department arrived as backup. Id. Lieutenant Summers informed Detective Stegena that Demery had an active felony arrest warrant related to drug and firearm offenses. Id. at 7-8. The police officers did not observe anyone else leave apartment 9G, so they proceeded to knock on the door of the apartment and asked Demery to come to the door. Id. at 7. After knocking on the door, the police officers heard someone running frantically around the apartment. Id. Police were concerned that Demery, given the nature of his arrest warrant, was either arming himself or destroying evidence. Id. at 8. Consequently, they contacted the McKeesport Housing Authority, who quickly arrived on the scene to provide a key to the apartment. Id. Although police were able to unlock the door, they were only able to open it about an inch because Demery had barricaded it. Id. at 8-9. Demery eventually removed the barricade, and police entered the apartment. Id.

Once they entered, Detective Nicholas handcuffed Demery and two police officers conducted a protective sweep of the apartment to confirm no one else was present. Id. at 9. Police noted that the apartment had an overwhelming odor of marijuana. Id. at 10.

Eventually, the leaseholder of the apartment and Demery's paramour, Shardasia Williams ("Williams"), arrived at the scene. Id. After officers advised Williams of the situation and her rights regarding a search of the apartment, she consented to a search. Id. at 10-11. During the search, police discovered box of .380 caliber handgun ammunition in the kitchen, a stolen Smith & Wesson .40 caliber firearm, 17 ounces of marijuana, and a digital scale with marijuana residue. Id. at 11.

Police placed Demery under arrest, and the Commonwealth charged him with receiving stolen property, possession of a controlled substance, possession with the intent to deliver a controlled substance, possession of drug paraphernalia, and persons not to possess a firearm. On March 24, 2021, Demery filed a suppression motion in which he argued that his arrest warrant was insufficient to authorize police to enter Williams' apartment because it was not his residence. Demery asserted that because apartment 9G was the residence of a third party, police needed a warrant authorizing the search of the premises based on probable cause. Demery contended that, as a result, police illegally entered and searched the apartment without valid authority. Following a hearing on Demery's motion, the trial court denied the motion.

On March 14, 2022, the trial court entered an order severing the persons not to possess a firearm charge from the other offenses. On July 21, 2022, the trial court held a jury trial on the severed firearms charge, at the conclusion of which the jury found him guilty.^[2]

On December 5, 2022, the trial court sentenced Demery to four-and-a-half to nine years in prison. This timely appeal followed. Both the trial court and Demery have complied with Pennsylvania Rule of Appellate Procedure 1925. Demery now presents the following issue for review:

Whether the [trial court] erred in denying [Demery]'s motion to suppress evidence, where the police conducted a warrantless entry and search of a third party's residence where [Demery] was an overnight guest, and the third[-]party leaseholder did not give voluntary consent?

Demery's Brief at 4.

Our standard of review for the denial of a suppression motion is well-settled:

Our 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, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. 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 our plenary review.

Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress.

Commonwealth v. Carey, 249 A.3d 1217, 1223 (Pa. Super. 2021).

In support of his sole issue on appeal, Demery argues that the trial court erred in denying his suppression motion because the police engaged in a series of unconstitutional warrantless searches that violated both the United States and Pennsylvania Constitutions. See Demery's Brief at 14-26. He raises three distinct arguments in support of this claim-pertaining to the lawfulness of the initial entry into Williams' apartment, the protective sweep, and the search conducted pursuant to Williams' consent-which we address seriatim. Id.

Lawfulness of the Initial Entry into the Apartment

First Demery argues that the initial illegal search occurred when police unlocked the door to apartment 9G and partially forced the door open. Id. at 17-22. Demery contends that his arrest warrant did not authorize police to enter the apartment because it was not his residence, but was the residence of Williams, a third party. Id.

"Both the Fourth Amendment [to] the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals['] freedom from unreasonable searches and seizures." Commonwealth v. Duke, 208 A.3d 465, 470 (Pa. Super. 2019) (citation and quotation marks omitted). "A warrantless search or seizure is presumptively unreasonable under the Fourth Amendment and Article I, § 8, subject to a few specifically established, well-delineated exceptions." Commonwealth v. Smith, 285 A.3d 328, 332 (Pa. Super. 2022) (quotation marks and citation omitted). "Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception ..., the stop and frisk exception, and the search incident to arrest exception." Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016) (quotation marks and citation omitted).

Demery relies on Commonwealth v. Romero, 183 A.3d 364 (Pa. 2018) (Opinion Announcing the Judgment of the Court) ("OAJC"), to support his claim. Demery's Brief at 17-21. In Romero, Earnest Moreno ("Moreno") absconded from a halfway house in Philadelphia, Pennsylvania to which he had been released on state parole and consequently, a warrant was issued for his arrest. Romero, 183 A.3d at 372. United States Marshals attempted to execute the arrest warrant at the home of Moreno's half-brother, Angel Romero ("Romero"). Id. Although Moreno was not in Romero's home, the marshals searched the entire residence and discovered a marijuana grow operation in Romero's basement. Id. The marshals informed the Philadelphia Police Department who obtained and executed a search warrant on Romero's home. Id. Police arrested Romero and his wife, and they were charged with numerous drug offenses. Id.

Romero and his wife filed suppression motions, which the trial court granted. Id. at 373. In granting the suppression motions, the trial court relied on Payton v. New York, 445 U.S. 573, 603 (1980) (stating that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within"), and Steagald v. United States, 451 U.S. 204, 212-22 (1981...