Westlake v. Roberts , 2022 Ohio 3675 ( 2022 )

[Cite as Westlake v. Roberts, 2022-Ohio-3675.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF WESTLAKE, :
Plaintiff-Appellee, :
No. 111339
v. :
JACKIE L. ROBERTS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: October 13, 2022
Criminal Appeal from Rocky River Municipal Court
Case No. 20-TRC-04635
Appearances:
Michael P. Maloney, City of Westlake Director of Law, and
John J. Spellacy, Assistant Prosecuting Attorney, for
appellee.
Law Office of John T. Forristal and John T. Forristal, for
appellant.
SEAN C. GALLAGHER, A.J.:
Defendant-appellant Jackie L. Roberts appeals from the trial court’s
denial of his motion to suppress evidence obtained from a warrantless home entry.
Upon review, we find a Fourth Amendment violation occurred. Under the particular
facts of this case, the city did not demonstrate an exigency that created a compelling
law enforcement need for officers to make a warrantless home entry while in pursuit
of a misdemeanant suspect. Therefore, we reverse the trial court’s decision and
remand the case with instructions for the trial court to vacate Roberts’s conviction,
enter an order suppressing any evidence obtained as a result of the warrantless
entry, and conduct further proceedings in the matter.
I. Facts and Procedural History
On December 21, 2020, a complaint was filed in Rocky River M.C. No.
20-TRC-04635 that charged Roberts with first-degree misdemeanor offenses of
operating a vehicle while intoxicated (“OVI”) in violation of R.C. 4511.19(A)(1)(a)
and OVI-refusal to submit to testing in violation of R.C. 4511.19(A)(2)(b).1 Roberts
filed a motion for leave to file a motion to suppress and a motion to suppress. Leave
was granted, but before the suppression hearing was held, Roberts entered a plea of
no contest to the OVI charge pursuant to a plea agreement. The trial court found
him guilty of OVI, and the remaining charge was nolled.
At the time Roberts entered the plea, Ohio case law provided that
“when officers, having identified themselves, are in hot pursuit of a suspect who flees
to a house in order to avoid arrest, the police may enter without a warrant, regardless
of whether the offense for which the suspect is being arrested is a misdemeanor.”
Middletown v. Flinchum, 95 Ohio St.3d 43, 45, 765 N.E.2d 330 (2002). But a few
1Roberts was also charged separately with obstructing official business in Rocky
River M.C. No. 20-CRB-1926. That case is not before us.
days after Roberts had entered his plea, the United States Supreme Court decided
Lange v. California, 594 U.S.__, 141 S.Ct. 2011, 2016, 210 L.Ed.2d 486 (2021),
which held otherwise. In Lange, the United States Supreme Court ruled that the
flight of a misdemeanant suspect does not categorically justify a warrantless home
entry and that a case-by-case assessment of the exigencies arising from the
misdemeanant’s flight must be considered. Id. at 2021-2022.
After the Lange decision was issued, Roberts filed a presentence
motion to withdraw his no-contest plea and asked the trial court to reset the matter
for a suppression hearing because of the holding in Lange. The city opposed the
motion and argued the warrantless entry that took place was constitutional under
Lange. A court magistrate denied Roberts’s motion, but the trial court sustained
Roberts’s objections to the magistrate’s ruling because “the record does not
currently contain a full factual basis for the police officer’s warrantless entry into
defendant’s home.” The trial court recognized the holding in Lange and scheduled
the case for a suppression hearing to provide the city with an opportunity to
establish facts that would justify the warrantless home entry that occurred in this
case. This court recognizes that Lange was newly decided and that the trial court
made a concerted effort to apply its holding, without the benefit of a decision from
this court applying Lange.
At the suppression hearing held on November 18, 2020, the trial court
indicated the record should reflect the trial court held a suppression hearing to
provide the city with an opportunity to establish facts that would justify the
warrantless home entry that occurred in this case. The trial court indicated the
record should reflect that “there is no issue [at the suppression hearing] that will be
addressed on whether or not the traffic stop was proper. There’s no objection to the
traffic stop.” The trial court also indicated the record should reflect “there is no
objection to probable cause to arrest after the failed sobriety testing.”
Patrolman Thomas Patrick Cummings of the City of Westlake Police
Department testified at the suppression hearing. On December 18, 2020, at
approximately 8:45 p.m., police dispatch broadcasted a motorist report of a
“possible intoxicated driver.”2 The dispatch information included a description of
the vehicle, the license plate number, and the listed address on Dover Center Road
associated with the registered owner of the vehicle. Patrolman Cummings
proceeded to the area of Dover Center Road and Detroit Road. After observing the
suspect’s vehicle stop for a red light and turn north on Dover Center Road,
Patrolman Cummings got behind the vehicle and activated his overhead lights. The
suspect then pulled in the driveway of the residence associated with the vehicle and
pulled up by the house. Patrolman Cummings testified that from the point of
activating the marked police cruiser’s overhead lights to the point of the suspect
pulling into the driveway was approximately the distance of one residence, which
was only about 60 or 70 feet. Patrolman Cummings expressed with regard to
2 It appears the motorist report was made from an identified tipster. Patrolman
Cummings testified that if he “remember[ed] correctly, the words were that the driver was
all over the road.” However, he conceded that is not what he wrote in his report.
initiating the stop, he “would [not] say that [the suspect] had fled from us in his
vehicle. He was just delayed in his stopping.” Patrolman Cummings did not observe
any firsthand signs of impairment.
Patrolman Cummings followed the suspect’s vehicle into the
driveway. He testified that once the suspect exited his vehicle, he fled into the home.
Patrolman Cummings confirmed that although he originally responded to
investigate a report of a possible intoxicated driver, he did not believe he had
probable cause to make an arrest for operating a vehicle under the influence (“OVI”)
at the point the suspect exited the vehicle.3 However, he testified that regardless of
whether the suspect was impaired, he fled from the lawful order of a police officer.
Patrolman Cummings testified as follows:
When the vehicle stopped, came to a stop, the male operator of the
vehicle opened the driver’s side door, jumped out of the vehicle, looked
back at me, and then ran towards the residence. * * * I did get out of
my vehicle and chase after the male on foot.
***
I told the male to stop several times.
***
He did not [stop].
3 “Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police
officer who lacks probable cause to arrest may, consistent with the Fourth Amendment,
make an investigatory stop, including a traffic stop, of a person if the officer has
reasonable suspicion to believe that the person is or is about to be engaged in criminal
activity.” State v. Tidwell, 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 19, citing
Navarette v. California, 572 U.S. 393, 396, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014).
Patrolman Cummings testified that the suspect, whom he identified
at the hearing as Roberts, after momentarily fumbling at the door, gained entry to
the house. Patrolman Cummings proceeded to testify as follows:
The male did gain entry into the house. At which point, the door that
enters into the house closed behind him. [Patrolman Cummings and
Patrolman Carmen, who was with him,] were close enough that we
opened the door in pursuit of the male. There was a gentleman
standing in the hallway area right there at the door. At which point, he
was not the male that I had observed flee from the vehicle, so I stopped
to speak briefly with him, asking where the male had gone. Patrolman
Carmen went behind me in pursuit of the male into the house, and I
followed Patrolman Carmen. At which point, Patrolman Carmen
located the male that we had pursued into the house sitting on the
couch in the living room area. He was told to stand up. There were
several people in the living room area including some small children.
The male was secured for our safety and for the safety of the people in
the house, and he was escorted out of the residence.
Patrolman Cummings testified that Roberts denied driving the vehicle and stated
that he had been drinking at his mother’s house and that he had not been driving.
The dashcam video with audio was played for the court and included
the events up until Roberts entered the home. Video from the in-house surveillance
camera also was introduced.
Patrolman Cummings described Roberts as “hurriedly moving” into
the house upon exiting the vehicle. He testified that the individual who opened the
door for Roberts appeared to be an occupant of the home and that the individual
had a hand on the door handle. Roberts gained entry immediately before Patrolman
Cummings reached him. Patrolman Cummings caught the screen door as it was
closing and chased Roberts into the home. Patrolman Cummings did not ask to
enter; he only asked the individual at the door where the person he was chasing
went. Roberts was secured within “a couple seconds” of the police entering the
home.
Patrolman Cummings indicated that he did not know whether
Roberts was a threat; however, he testified that Roberts did not have anything in his
hands and did not make any threatening moves toward the officers. Also, Patrolman
Cummings did not feel the need to pull his taser or his own weapon for self-defense.
Patrolman Cummings was aware the vehicle was registered to a residence in the
approximate area on Dover Center Road, and there was no indication that Roberts
did not belong at the house. Patrolman Cummings acknowledged that no one
invited the officers into the home, the individual at the door did not ask the officers
for any help, and none of the occupants in the home were asking for assistance.
When asked why a warrant to enter the home was not obtained,
Patrolman Cummings responded as follows:
I felt we had exigent circumstances. We had an unknown male. We
had a reported possible intoxicated driver. We had a gentleman fleeing
from us into a residence. We were directly behind the male. I believe
that we were at the time in hot pursuit of that male into the home.
Patrolman Cummings conceded on cross-examination that he easily
could have stopped and knocked on the door and asked for the person he was
chasing to come out. He also stated that he had the ability to contact his supervisor
by phone or radio that night to obtain a warrant and that the process takes several
hours. However, he also conceded it could possibly be a short delay, or a few
minutes longer delay, to obtain the warrant.
It appears from the record that following the warrantless entry,
additional evidence was obtained by the police. According to the investigative
report, Patrolman Cummings observed Roberts was slurring his words, had a strong
odor of alcohol, admitted he had been drinking a few beers at his mother’s house,
and denied driving the vehicle. Reportedly, Roberts also had a hard time seeing the
officer’s stimulus pen, recited letters from the alphabet in random order, and
refused further field sobriety testing. The police arrested Roberts for misdemeanor
OVI.
Following the suppression hearing, the trial court denied Roberts’s
motion to suppress. The trial court concluded as follows:
[T]he totality of circumstances herein demonstrates an emergency and
a need to act before it is possible to get a warrant. Drunk drivers pose
an emergency and a risk to others and that risk would be enhanced if
they thought that by failing to comply with a lawful police order they
could race away from the police and run into a home to subvert the
officer’s effort to investigate their crime.
Following the trial court’s ruling, Roberts entered a no-contest plea
to the charges. The trial court found Roberts guilty of the charges and imposed
sanctions. Roberts timely filed this appeal.
II. Law and Analysis
Roberts’s sole assignment of error challenges the trial court’s decision
to deny his motion to suppress. He argues that the Fourth Amendment was violated
when the police made a warrantless entry into his home in pursuit of a
misdemeanant suspect, that the warrantless entry was not justified by any exigent
circumstances, and that the police did not have consent to enter his home without a
warrant.
“Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. “[A]n appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio
St.3d 19, 20, 437 N.E.2d 583 (1982). “But the appellate court must decide the legal
questions independently, without deference to the trial court’s decision.” State v.
Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 14, citing
Burnside at ¶ 8.
The Fourth Amendment to the United States Constitution protects
individuals against “unreasonable searches and seizures” and provides as follows:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Id.; accord Ohio Constitution, Article I, Section 14.
“The Fourth Amendment ordinarily requires that police officers get a
warrant before entering a home without permission.” Lange, 594 U.S.__, 141 S.Ct.
at 2016, 210 L.Ed.2d 486. “In the absence of a warrant, a search is reasonable only
if it falls within a specific exception to the warrant requirement.” Riley v. California,
573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), citing Kentucky v. King,
563 U.S. 452, 459-460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). “[T]he police bear a
heavy burden when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct.
2091, 80 L.Ed.2d 732 (1984).
“When a defendant moves to suppress evidence recovered during a
warrantless search, the state has the burden of showing that the search fits within
one of the defined exceptions to the Fourth Amendment’s warrant requirement.”
Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, at ¶ 18, citing
Athens v. Wolf, 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974). “The exclusionary
rule operates to exclude, or suppress, evidence that is derived from police conduct
that violated constitutional protections.” State v. Hobbs, 133 Ohio St.3d 43, 2012-
Ohio-3886, 975 N.E.2d 965, ¶ 21, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684,
6 L.Ed.2d 1081 (1961). “The purpose of the rule is not to redress the constitutional
injury but to deter future constitutional violations.” Banks-Harvey at ¶ 25, citing
Davis v. United States, 564 U.S. 229, 236-237, 131 S.Ct. 2419, 180 L.Ed.2d 285(2011).
“One important exception [to the Fourth Amendment’s warrant
requirement] is for exigent circumstances[,]” which “enables law enforcement
officers to handle ‘emergenc[ies]’—situations presenting a ‘compelling need for
official action and no time to secure a warrant.’” Lange at 2017, quoting Riley at
402; Missouri v. McNeely, 569 U.S. 141, 149, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
Because of the constitutional interest at stake, “the contours of that or any other
warrant exception permitting home entry are ‘jealously and carefully drawn,’ in
keeping with the ‘centuries-old principle’ that the ‘home is entitled to special
protection.’” Lange at 2018-2019, quoting Georgia v. Randolph, 547 U.S. 103, 109,
115, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).
In Lange, the United States Supreme Court rejected establishing a
categorical warrant exception when a suspected misdemeanant flees from police
into a home. Id., 594 U.S__, 141 S.Ct. 2011, 210 L.Ed.2d 486, at syllabus. The
United States Supreme Court had previously found the warrantless entry into a
home by police in hot pursuit of a fleeing felon suspected of dealing drugs was
justified in United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300(1976),4 but Santana addressed a police pursuit of a felony suspect. Lange at 2019,
citing Santana. The Supreme Court had also found that “application of the exigent-
circumstances exception in the context of a home entry should rarely be sanctioned
4 In Santana, the Supreme Court reasoned the warrantless intrusion into Santana’s
house by police in hot pursuit was justified when there was a realistic expectation that any
delay would result in destruction of narcotics evidence. Id. at 43.
when there is probable cause to believe that only a minor offense” is involved.
Welsh, 466 U.S. at 753, 104 S.Ct. 2091, 80 L.Ed.2d 732.
Welsh involved a warrantless arrest for operating a motor vehicle
while intoxicated, which was a noncriminal traffic offense under the applicable
Wisconsin Vehicle Code. Id. at 743, 753. A witness had observed a car being driven
erratically and eventually swerve off the road. Id. at 742. The driver got out of the
car and walked away. Id. After checking the car’s registration, police proceeded to
Welsh’s nearby home and entered without a warrant. Id. at 742-743. The United
States Supreme Court rejected the state’s attempt to justify the arrest by relying on
the hot-pursuit doctrine and recognized that because the petitioner had already
arrived home and had abandoned his car at the scene of the accident, there was little
remaining threat to the public safety. Id. at 753. As to the state’s asserted need to
ascertain the petitioner’s blood-alcohol level, the Supreme Court determined that “a
warrantless home arrest cannot be upheld simply because evidence of the
petitioner’s blood-alcohol level might have dissipated while the police obtained a
warrant.” Id. at 754. The Supreme Court concluded that Welsh’s arrest was invalid
and was “clearly prohibited by the special protection afforded the individual in his
home by the Fourth Amendment.” Id.In Lange, the United States Supreme Court recognized that Welsh
involved facts under which no pursuit was necessary. Lange at 2020. The Supreme
Court indicated that although the calculus changes with a suspect’s flight, “[i]n
misdemeanor cases, flight does not always supply the exigency that this Court has
demanded for a warrantless home entry.” Id. at 2021.
Under the facts in Lange, Lange was charged with misdemeanor
driving under the influence and a noise infraction. Id., 594 U.S.__, 141 S.Ct. 2011,
210 L.Ed.2d 486, at syllabus. Lange drove a short distance to his driveway and
entered his attached garage after an officer initiated a traffic stop. Id. The officer
followed Lange into the garage without a warrant and conducted field sobriety tests
after observing signs of intoxication. Id.The Supreme Court recognized that “an officer may make a
warrantless entry when ‘the exigencies of the situation’ create a compelling law
enforcement need.’” Id. at 2016, quoting King, 563 U.S. at 460, 131 S.Ct. 1849, 179
L.Ed.2d 865. But the Supreme Court rejected application of a categorical rule
allowing a warrantless home entry when a misdemeanant flees. Id. at 2016, 2024.
The Supreme Court considered that its “Fourth Amendment precedents * * * point
toward assessing case by case the exigencies arising from misdemeanants’ flight.”
Id. at 2021. The Supreme Court held that “[w]hen the totality of circumstances
shows an emergency—such as imminent harm to others, a threat to the officer
himself, destruction of evidence, or escape from the home—the police may act
without waiting” for a warrant. Id. at 2021. Although the circumstances include the
flight itself, “[w]hen the nature of the crime, the nature of the flight, and surrounding
facts present no such exigency, officers must * * * get a warrant.” Id. at 2021-2022.
In Lange, the Supreme Court concluded as follows:
The flight of a suspected misdemeanant does not always justify a
warrantless entry into a home. An officer must consider all the
circumstances in a pursuit case to determine whether there is a law
enforcement emergency. On many occasions, the officer will have good
reason to enter—to prevent imminent harms of violence, destruction of
evidence, or escape from the home. But when the officer has time to
get a warrant, he must do so—even though the misdemeanant fled.
Id. at 2024.
We recognize that Lange was newly decided at the time of the
suppression hearing in this matter and that the trial court pointed to legitimate
concerns presented by drunk drivers who flee from police. However, once the police
followed the suspect into the driveway and he exited his vehicle, the public danger
posed by the potential OVI was over. See Welsh, 466 U.S. at 743, 104 S.Ct. 2091, 80
L.Ed.2d 732. Without diminishing the seriousness of drunk driving, we must
uphold the constitutional protections afforded by the Fourth Amendment, which
“draw[s] a firm line at the entrance to the house.” Lange, 594 U.S.__, 141 S.Ct. at
2018, 210 L.Ed.2d 486, quoting Payton v. New York, 445 U.S. 573, 590, 100 S.Ct.
1371, 63 L.Ed.2d 639 (1980). Given the constitutional interest at stake, the United
States Supreme Court has repeatedly declined to expand the scope of the exception
to the warrant requirement to enter a home and has expressed that it is “not eager—
more the reverse—to print a new permission slip for entering the home without a
warrant.” Id. at 2019. Although “[a] great many misdemeanor pursuits involve
exigencies allowing warrantless entry[,]” “whether a given one does so turns on the
particular facts of the case.” Id. at 2016.
In this case, the city had the burden of showing that the warrantless
entry fit within the exigent-circumstances exception to the Fourth Amendment’s
warrant requirement.5 Although the police were pursuing a possible intoxicated
driver who fled into his home, the totality of the circumstances shows no exigency
to justify the warrantless home entry in this case.
The record shows that Patrolman Cummings had initiated a traffic
stop after a motorist report of a possible intoxicated driver. After Roberts pulled
into the nearby driveway, he exited his vehicle and hurriedly entered the home that
was associated with the vehicle. Patrolman Cummings testified that he did not have
probable cause for an OVI arrest when Roberts exited his vehicle. Patrolman
Cummings, without asking for consent to enter, caught the door to the home as it
was closing and entered immediately after Roberts. Patrolman Cummings testified
that he entered the home because he was in hot pursuit of a possible intoxicated
driver. He pointed to no exigent circumstances that would justify the warrantless
entry. Although he testified that he did not know whether anyone was in harm’s
way, he conceded that he was responding to a suspected OVI, the suspect did not
appear to have anything in his hands and made no threatening moves, the officers
followed immediately behind Roberts into the home and did not feel the need to pull
a taser or a handgun or to radio for backup, nothing indicated Roberts did not belong
at the home, there were no signs of distress in the home, none of the occupants were
5 The city did not assert any other exception applied.
asking for help in the home, and there was no testimony that the police were
concerned about Roberts’s escape. As the trial court observed at the close of the
hearing, “what you really had was an intoxicated driver who was avoiding
apprehension.” Patrolman Cummings conceded that he could have asked for the
person he was chasing to come out of the home and that he had the ability to contact
his supervisor to obtain a warrant.6
The trial court found that “the officer pursuing a defendant for being
‘all over the road’ could be pursuing a felon” and “based on the potential danger in
this case to others and the potential that indeed a felony [and] not a misdemeanor
had been committed, * * * that the facts support the police officer’s pursuit of the
defendant into the home where he fled.” However, Patrolman Cummings testified
that when Roberts fled into the home, he only had probable cause to believe Roberts
had committed misdemeanor offenses. No evidence was presented indicating a risk
of imminent harm of violence to the occupants in the home, a threat to the officer
himself, or a need to prevent the destruction of evidence or escape from the home.
Although the flight may well have been an attempt to evade the police investigation
of a potential OVI, this did not justify police conduct that violated constitutional
protections. Relatedly, in McNeely, 569 U.S. at 151-156, 133 S.Ct. 1552, 185 L.Ed.2d
696, the United States Supreme Court rejected an argument that the natural
6Conceivably, in today’s modern world, the police could have obtained a warrant
and then done field sobriety testing, done a blood draw, and/or offered a breathalyzer test
without violating any Fourth Amendment right.
dissipation of alcohol in a drunk-driving suspect’s bloodstream constitutes a per se
exigency that categorically justifies warrantless BAC testing. See also Welsh, 466
U.S. at 754, 104 S.Ct. 2091, 80 L.Ed.2d 732 (finding a state’s asserted need to
ascertain the petitioner’s blood-alcohol level did not justify a warrantless home
entry).
The trial judge in this case is a well-reasoned, seasoned jurist. We do
not take lightly reversing her assessment of the facts in this case. Likewise, the
officer was just trying to do his job protecting the community in a manner he deemed
appropriate given the conditions at the time. Nevertheless, we must be concerned
with the bigger constitutional question this case raises. For the Fourth Amendment
to have any viability beyond the words it expresses on paper, a line must be drawn.
Under the particular facts of the case, the city did not demonstrate an
exigency that created a compelling law enforcement need for officers to make a
warrantless home entry while in pursuit of a misdemeanant suspect. Because the
nature of the crime, the nature of the flight, and surrounding facts presented no such
exigency, the warrantless home entry by police violated the Fourth Amendment.
Accordingly, we sustain the assignment of error. Upon remand, the
trial court shall vacate Roberts’s conviction, enter an order suppressing any evidence
obtained as a result of the warrantless entry, and conduct further proceedings in the
matter.
Judgment reversed; case remanded with instructions.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution. Case remanded to the trial
court.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY and
EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY