Com. v. Vega-Diaz, L. ( 2014 )


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  • J-S56009-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    LUIS VEGA-DIAZ
    Appellant                No. 2075 MDA 2013
    Appeal from the Judgment of Sentence November 8, 2013
    In the Court of Common Pleas of Berks County
    Criminal Division at No(s): CP-06-CR-0000281-2012
    BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
    MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 07, 2014
    Appellant, Luis Vega-Diaz, appeals from the judgment of sentence
    entered November 8, 2013, by the Honorable Thomas G. Parisi, Court of
    Common Pleas of Berks County. Vega-Diaz argues that the trial court erred
    when it denied his pre-trial motion to suppress evidence. We disagree and
    affirm.
    The trial court summarized the facts adduced at the pre-trial
    suppression hearing as follows.
    On January 2, 2012, Criminal Investigator John Lackner of
    the [City of Reading Police Department,] Vice Division[,]
    prepared a search warrant for 1020 Weiser Street in the City of
    Reading, Berks County, as well as a Ford Focus HWF-2813, and
    the body of Appellant, Luis Vega-Diaz. The warrant was signed
    by Magisterial District Judge Kim Bagenstose and executed by
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    J-S56009-14
    Officer Lackner and other members of the Reading Police Vice
    Division on January 3, 2012.
    At approximately 9:30 a.m. on January 3, 2012, officers
    observed Appellant exit 1020 Weiser Street and leave the area in
    the Ford Focus that was also subject of the search warrant.
    Carrasquillo stopped Appellant in the Focus and placed him into
    custody subject to the warrant. Officer Lackner testified that
    once the officers assigned to the entry were notified that the
    vehicle was stopped and the Appellant was in custody, the
    officers approached 1020 Weiser Street to make entry.
    After   repeated   knocks   and    an   announcement,
    approximately one minute had passed. At this point, Officer
    Lackner requested that Detective Matt Niebel break the door
    down with a battering ram. Detective Niebel then announced
    r. Once the door
    and entered through the front door. Ms. Tonya Rice was found
    on the second floor in the area of the bedroom in the hallway as
    the officers searched the residence for people in order to secure
    the residence and execute the search warrant. Ms. Rice was
    then handcuffed. Meanwhile, Appellant and the Ford Focus were
    Officer Lackner testified that, as Appellant did not speak English,
    explanation of the search warrant and Miranda rights to the
    Appellant from English to Spanish. Officer Lackner explained to
    Appellant that there was a search warrant for his house at 1020
    Weiser, the two vehicles and his person. Appellant than agreed
    to speak to Officer Lackner without an attorney. Appellant,
    through Officer Carrasquillo, told Officer Lackner that he had
    some heroin packets on his person and that additional heroin
    was located in the residence. Appellant took Officer Lackner
    through the house and showed him where the heroin could be
    located. Appellant indicated to Officer Lackner that he was a
    drug user. Appellant told Officer Lackner that there was an
    additional quantity of heroin in the basement, which was in a
    black trunk. Officer Lackner then asked Appellant if he had a
    key to the lock. Appellant said that the key to the trunk was on
    the key ring that he had on his person.
    A large quantity of heroin was found inside the locked
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    J-S56009-14
    key ring that opened the front door of 1020 Weiser Street. Upon
    further search of the residence, a firearm was seized from the
    second floor front bedroom where it was found standing upright
    behind the bedroom door. Empty unused packaging material
    was also found inside the residence. Additionally, 50 packets of
    heroin that were bundled in packages were found on the
    Trial Court Opinion, 2/10/14 at 3-4.
    Vega-Diaz chose to proceed pro se, with the assistance of a translator,
    during pre-
    Office acted as standby counsel. Vega-Diaz filed a pre-trial motion to
    suppress evidence, which the trial court denied by order dated on April 30,
    2013, following several hearings on the matter. A jury ultimately convicted
    Vega-Diaz was convicted of Possession with Intent to Deliver a Controlled
    Substance,1 Persons Not to Possess Firearms,2 and Possession of Drug
    Paraphernalia.3 On November 8, 2013, the trial court sentenced Vega-Diaz
    probation. This timely appeal followed.4
    On appeal, Vega-Diaz raises the following issue for our review.
    -trial
    motions, where police officers executed a search warrant of
    n   violation    of
    ____________________________________________
    1
    35 P.S. § 780-113(a)(30).
    2
    18 Pa.C.S.A. § 6105(a)(1).
    3
    35 P.S. § 780-113(a)(32).
    4
    On April 17, 2014, Counsel was appointed to represent Vega-Diaz on
    appeal.
    -3-
    J-S56009-14
    of the Constitution of the United States, and Article I, Section 8
    of the Constitution of the Commonwealth of Pennsylvania?
    Our standard when reviewing a
    suppress evidence is well-settled.
    [W]e are limited to determining whether the factual findings are
    supported by the record and whether the legal conclusions
    drawn from those facts are correct. We may consider the
    evidence of the witnesses offered by the prosecution, as verdict
    winner, and only so much of the defense evidence that remains
    uncontradicted when read in the context of the record as a
    whole.
    Commonwealth v. McAliley, 
    919 A.2d 272
    , 275-276 (Pa. Super. 2007)
    (citation omitted). Our scope of review in suppression matters is limited to
    the evidentiary record presented at the pre-trial suppression hearing, and
    does not include evidence elicited at trial.   See In re L.J., 
    79 A.3d 1073
    ,
    1084-1085 (Pa. 2013).
    findings of the suppression court, this Court will reverse only if there is an
    Commonwealth
    v. Powell, 
    994 A.2d 1096
    , 1101 (Pa. Super. 2010).
    (A) A law enforcement officer executing a search warrant shall,
    before entry, give, or make reasonable effort to give, notice of
    the offi
    the premises specified in the warrant, unless exigent
    circumstances require the officer's immediate forcible entry.
    (B) Such officer shall await a response for a reasonable period of
    time after this announcement of identity, authority, and purpose,
    -4-
    J-S56009-14
    forcible entry.
    (C) If the officer is not admitted after such reasonable period,
    the officer may forcibly enter the premises and may use as much
    physical force to effect entry therein as is necessary to execute
    the search.
    Pa.R.Crim.P. 207.
    warning, and to safeguard legitimate privacy expectations to the degree
    Commonwealth v. Kane, 
    940 A.2d 483
    , 489 (Pa. Super. 2007)
    (citation omitted).
    Commonwealth v. Walker, 
    874 A.2d 667
    , 671 (Pa. Super. 2005) (citation
    
    Id.
    (citation omitted).
    Vega-Diaz argues that the police never announced before knocking
    down the door and entering the residence. The suppression court rejected
    this argument and determined that, based on the evidence presented at the
    suppression hearing, police reasonably complied with the knock and
    announce rule. We agree.
    At the suppression hearing, Officer Lackner testified that he knocked
    Suppression Hearing, 8/16/12 at 27.       After waiting approximately one
    minute, he requested Officer Niebel to force the door open.       Id. at 28.
    -5-
    J-S56009-14
    Officer Lackner testified that after he knocked a final time, Officer Neibel
    Id. at 30.
    forcing the door to the residence open, and again after opening the door and
    prior to entering. N.T., Suppression Hearing, 9/9/12 at 10. Officer Niebel
    additionally testified that the police officers continued to announce their
    presence and purpose as they entered and cleared the house. See id.
    Based on the foregoing testimony, we find that the police substantially
    complied with the knock and announce rule. By announcing their presence
    prior to, during, and after entering the residence at 1020 Weiser Street,
    anyone located in the residence would have been fully aware of police
    presence and purpose and would have had ample opportunity to peacefully
    surrender.     We agree with the suppression court that the police acted
    reasonably and that their conduct did not offend constitutional mandates.5
    Accordingly, suppression was not warranted.
    Judgment of sentence affirmed. Jurisdiction relinquished.
    ____________________________________________
    5
    The United States Supreme Court has held that the exclusionary rule is
    inapplicable to Fourth Amendment knock and announce violations. See
    Hudson v. Michigan, 
    547 U.S. 586
    , 594-595 (2006).
    -6-
    J-S56009-14
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/7/2014
    -7-
    

Document Info

Docket Number: 2075 MDA 2013

Filed Date: 10/7/2014

Precedential Status: Precedential

Modified Date: 10/30/2014