Commonwealth v. Ford

175 A.3d 985

COMMONWEALTH of Pennsylvania

v.Anthony FORD, Appellant

No. 196 EDA 2016

Superior Court of Pennsylvania.

Argued May 17, 2017

Filed November 14, 2017

Reargument Denied January 24, 2018

Stanley R. Krakower, Philadelphia, for appellant.

Robert F. Petrone, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, OTT, and FITZGERALD,^* JJ.

OPINION BY FITZGERALD, J.:

Appellant, Anthony Ford, appeals from the judgment of sentence imposed in the Philadelphia County Court of Common Pleas. Appellant claims the trial court erred in denying his motion to suppress the firearm seized from his home. He also argues that the trial court erred in finding the evidence sufficient to sustain his conviction for possession of a firearm with an altered manufacturer's number, because the manufacturer's number was merely obscured by corrosion, not by human hands.¹ We affirm the trial court's order denying suppression, but we reverse Appellant's conviction for possession of a firearm with an altered manufacturer's number.

The trial court summarized the factual and procedural history as follows:

On October 20, 2015, [ ] Appellant, [ ] through counsel[,] argued a motion to suppress, which was denied. On that same date, he was found guilty following a [non-jury] trial of [p]ossession of [f]irearm [p]rohibited^[2] and [possession of firearm with altered manufacturer's number.] Sentencing was deferred until December 16, 2015 for the preparation of a presentence investigation and mental health report. On that date[, Appellant] was sentenced to [concurrent terms] of ... two and one-half [ ] to five [ ] years [' imprisonment] followed by three [ ] years of probation.

On January 6, 2016[,] Appellant filed a timely notice of appeal. Trial counsel filed a motion to withdraw[,] which was granted. New counsel was appointed. On February 18, 2016, [the trial court] entered an [o]rder pursuant to Pa.R.A.P. 1925(b). On March 8, 2016[,] Appellant filed a timely response to [the trial court's] order.

On August 28, 2014[,] at around 10 pm, Philadelphia [p]olice [o]fficers Patrick Biles along with his partner, Officer St. Onge, were in uniform riding in a marked police car. They received several radio calls directing them to 2010 Wilmot [Street] for reports of a person bleeding in the backyard and a person with a gun.^[3] The officers went to the backyard of 2010 Wilmot [Street⁴ ] but did not find anyone. They then went through an alleyway to Dit[ ]man [Street]. There[,] several neighbors were directing them to 4663 Ditman [Street]. While standing on the porch of [4663 Ditman Street,] Officer Biles testified that he heard multiple voices screaming. Based on the information received, and the numerous gun arrests that Officer Biles conducted in that area, which he classified as a high crime area, he knocked on the door. When no one answered, Officer Biles opened the unlocked door and went inside. The home appeared to be under construction[,] but there were several lights on. Once inside, Officer Biles observed three individuals standing in what would be the living room of the home. Specifically, he observed [ ] Appellant make a swinging motion with his arm and place an object on the kitchen chair next to him. Officer Biles made this observation from approximately thirty feet away. He ordered [ ] Appellant to show his hands and placed him in handcuffs. Officer Biles recovered a .38 caliber silver handgun with the serial number obscured on the chair where he observed [ ] Appellant make the swinging arm motion.

Trial Ct. Op., 9/13/16, at 1–2 (citations and footnote omitted). During trial, the parties stipulated that the serial number on the handgun was "obscured by corrosion [and] recovered by polishing." N.T., 10/20/15, at 88.

Appellant raises the following issues for our review:

A. Was it error for the [trial] court to deny Appellant's motion to suppress evidence of a gun found in Appellant's home, where the gun was the product of a warrantless search of said home by police, without probable cause and exigent circumstances?

B. Was it error for the trial court to find that Appellant was guilty of possession of a firearm which has had the manufacturer's number integral to the frame or receiver altered, changed, removed, or obliterated, where the number was merely obscured by corrosion, and was recovered by polishing?

Appellant's Brief at 2 (capitalization omitted).

Appellant first contends that the trial court erred in denying his motion to suppress, because the gun found in his home was "the product of an unreasonable search and seizure." Id. at 5. He asserts the police officers lacked probable cause and exigent circumstances to justify a warrantless entry and search of his home. We disagree.

We review the denial of a motion to suppress as follows:

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. Jones , 121 A.3d 524, 526–27 (Pa. Super. 2015) (citation, alterations, and ellipsis omitted).

In a private home, searches and seizures without a warrant are presumptively unreasonable. Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment. In determining whether exigent circumstances exist, a number of factors are to be considered. ...

Among the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.

Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.

Commonwealth v. Roland , 535 Pa. 595, 637 A.2d 269, 270–71 (1994) (citations, quotations, and ellipsis omitted). Further, "when we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element. We also focus on the circumstances as seen through the eyes of the trained officer ...." Commonwealth v. Chase , 394 Pa.Super. 168, 575 A.2d 574, 576 (1990) (citations, alteration, and ellipsis omitted).

Exigent circumstances exist where "the police 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) (citations omitted). Additionally, "[i]t 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). "[T]he 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 , 565 U.S. 469, 477, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (citation omitted). Additionally, "it is a matter of common sense that a combination of events each of which is mundane when viewed in isolation may paint an alarming picture." Id. at 476–77, 132 S.Ct. 987.

In this case, exigent circumstances justified the officers' warrantless entry into Appellant's house. The evidence adduced during the suppression hearing demonstrates that on the evening in question, police officers received reports of someone screaming, someone bleeding, and someone with a gun at the Wilmot Street residence abutting Appellant's house. N.T., 10/20/15, at 12. Officer Biles, an eleven-year officer in this police district, described this as a "high crime area." Id. at 15. The officers did not find anything at the Wilmot Street address, but when they proceeded to Ditman Street, one neighbor pointed towards 4663 Ditman Street. Id. at 14–15. Another neighbor who lived next door to 4663 Ditman Street was standing in her doorway and appeared frightened, distraught and happy to see the officers. Id. at 15. Officer Biles asked the neighbor if she heard any gunshots, and she replied: "Not yet." Id. at 13. As the officers approached 4663 Ditman Street, they heard...