Com. v. Berkheimer, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANDREW DAVID BERKHEIMER : No. 720 WDA 2022
Appeal from the Suppression Order Entered May 17, 2022
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001312-2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 4, 2023
The Commonwealth appeals from the order granting Andrew David
Berkheimer’s pre-trial motion to suppress. We affirm.
In June 2021, Berkheimer was charged with one count of possession
with intent to deliver a controlled substance, two counts of simple possession,
and 11 counts of possession of drug paraphernalia.1 The seizure of those items
resulted from a search of Berkheimer’s home. Berkheimer filed an omnibus
pre-trial motion to suppress the evidence obtained during the search. The trial
court held an evidentiary hearing on the motion on December 7, 2021.
At the hearing, the Commonwealth presented the testimony of
Lieutenant Travis Clowson of the Roaring Spring Borough Police Department.
He testified that on May 22, 2021, he was working the 4:00 p.m. to midnight
____________________________________________
1 See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
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shift. N.T., Omnibus Pretrial Motion Hearing, 12/7/21, at 7. Lieutenant
Clowson stated that upon returning to the office from being on patrol shortly
after 5:00 p.m., he listened to a voicemail that was left on the police
department’s answering machine. Id. at 7, 64-66. The caller identified herself
as Berkheimer’s neighbor. Id. at 66. She stated in the message that she
believed someone might have broken into Berkheimer’s house because the
storm cellar door was ajar, and glass was broken out of a window. Id. at 66-
67. The caller also said there was a needle in Berkheimer’s yard. Id. at 66.
After listening to the voicemail, Lieutenant Clowson proceeded to
Berkheimer’s residence. Id. at 8. Upon arrival, he noticed that there was “a
storm cellar there with a door that was off to the side and a smashed window
on the door led down by a flight of steps.” Id. at 9. Lieutenant Clowson also
observed copper piping and wires at the bottom of the steps. Id. He testified
that since the storm cellar door was ajar and the window was broken, he
believed that “someone may still be in there trying to steal items.” Id. He did
not knock on the front door because he did not want to “spook” anyone who
might still be in the house. Id. at 23. He also testified that he did not attempt
to contact Berkheimer because he did not have time to search for
Berkheimer’s phone number. Id. at 24. At that point, Lieutenant Clowson
called for another officer to come to the scene to assist him. Id. at 10.
Lieutenant Clowson explained to his backup officer that there was an incident
approximately one year prior where someone was in Berkheimer’s house
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stealing things, and he believed that the same individual might be illegally in
the house again. Id.
Lieutenant Clowson and his backup officer then began to “clear the
house.” Id. at 11. They walked down the basement steps into the basement
and then proceeded to walk up another set of basement steps that led to the
first floor of the house. Id. at 11-12. While walking up those steps, Lieutenant
Clowson observed a cardboard box in plain view on the steps containing
psilocybin mushrooms. Id. at 12. He stated that he did not have to manipulate
anything to see them. Id. Lieutenant Clowson testified that he did not get a
search warrant at that point because he “had [to] clear the house to make
sure nobody else was in the house.” Id. at 59. The officers then opened the
door from the basement into the kitchen and searched the kitchen and living
room to see if anyone was there. Id. at 47. At that point, they announced
their presence stating, “Roaring Spring Police.” Id. They then searched the
next level of the house, where the bedrooms were located. Id. at 54. After
searching that floor, the officers went up to the attic and searched it. Id. at
55. The officers did not find anyone in the house or any evidence that someone
had broken into the home and tried to escape. Id. at 59.
Lieutenant Clowson testified that after securing the residence, he
applied for and was granted a search warrant. Id. at 13. He searched
Berkheimer’s home pursuant to the warrant and found a small amount of
heroin and drug paraphernalia.
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The trial court granted the suppression motion. The Commonwealth filed
a motion for reconsideration, which was denied. This appeal followed. The
Commonwealth raises the following issues:
1. Whether the lower court misapplied law to the facts in
determining the law enforcement officer did not have exigent
circumstances to conduct a warrantless entry into the home?
2. Whether the lower court misapplied law to the facts in placing
lesser weight to a concerned citizen directly calling the police
department than if they called 911?
Commonwealth’s Br. at 5.
On appeal from an order granting a motion to suppress, our review is
“limited to determining whether the record supported that court’s factual
findings and whether the legal conclusions that the suppression court drew
from those facts were correct.” Commonwealth v. Torres, 764 A.2d 532,
536-37 (Pa. 2001). We consider only “the evidence presented by the defense
and so much of the evidence for the prosecution which remained
uncontradicted when read in the context of the record as a whole.” Id. at 537.
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect against unreasonable
searches and seizures. “A search conducted without a warrant is deemed to
be unreasonable and therefore constitutionally impermissible, unless an
established exception applies.” Commonwealth v. Romero, 183 A.3d 364,
396 (Pa. 2018) (citation omitted).
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In its first issue raised in its Statement of Issues Involved, the
Commonwealth contends the trial court erred in determining that Lieutenant
Clowson “did not have exigent circumstances to conduct a warrantless entry
into the home[.]” Commonwealth’s Br. at 5. However, the argument section
of its brief does not argue that exigent circumstances existed. In fact, they
are not even mentioned. Rather, the Commonwealth argues that two other
exceptions to the warrant requirement permitted a warrantless search of
Berkheimer’s house – the protective sweep and plain view doctrine. See id.
at 12-18.
Pennsylvania Rule of Appellate Procedure Rule 2119 provides that the
argument section of an appellate brief “shall be divided into as many parts as
there are questions to be argued,” and requires each section to have a
“discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a). “The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Eichman v. McKeon, 824 A.2d 305, 319 (Pa.Super.
2003) (citations omitted). The failure to follow these instructions constitutes
waiver. Id.; see also Norman for Estate of Shearlds v. Temple Univ.
Health Sys., 208 A.3d 1115, 1119 (Pa.Super. 2019) (holding claims waived
“because they are undeveloped and lack citation to pertinent legal authority”);
McCabe v. Marywood Univ., 166 A.3d 1257, 1264 (Pa.Super. 2017) (finding
issue waived where the appellant’s “argument consists of one paragraph with
no citation to authority or developed analysis”).
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Here, because the argument section of the Commonwealth’s brief failed
to develop an argument about, or even mention, its claim of exigent
circumstances, that claim is waived. See McKeon, 824 A.2d at 319.
The Commonwealth’s arguments that the protective sweep and plain
view exceptions were applicable are likewise not properly preserved, as they
do not appear in the Statement of Issues Involved. See Pa.R.A.P. 2116(a). In
any event, they are meritless. First, the Commonwealth contends a
warrantless protective sweep of Berkheimer’s house was lawful because of the
possibility that someone could have been inside the residence.
Commonwealth’s Br. at 16. It points out that the basement door was slightly
ajar and the glass in the window was broken. Id. The Commonwealth
maintains there was no evidence that the sweep was excessively long, and
Lieutenant Clowson’s body cam footage revealed that he “did not peer in every
nook and cranny within the residence.” Id. at 16-17.
The Commonwealth additionally argues that since Lieutenant Clowson
was lawfully conducting a protective sweep of the residence, he could have
seized the contraband at the time he saw it under the plain view doctrine. Id.
at 17. It argues that although Lieutenant Clowson chose not to seize the items
at that time, the items that were listed in the affidavit of probable cause for
the warrant were the items Lieutenant Clowson observed in plain view. Id.
The Commonwealth thus contends the items were seized pursuant to a lawful
search. Id. at 18.
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One exception to the warrant requirement is the protective sweep.
Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001). A protective
sweep is “a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others.” Id. (quoting
Maryland v. Buie, 494 U.S. 325, 327 (1990)). It is “not a full search of the
premises, but may extend only to a cursory inspection of those spaces where
a person may be found.” Buie, 494 U.S. at 335. The sweep must “last[] no
longer than is necessary to dispel the reasonable suspicion of danger and in
any event no longer than it takes to complete the arrest and depart the
premises.” Id. at 335-36. This Court has interpreted Buie as approving two
levels of protection:
Pursuant to the first level of a protective sweep, without a showing
of even reasonable suspicion, police officers may make cursory
visual inspections of spaces immediately adjacent to the arrest
scene, which could conceal an assailant. The scope of the second
level permits a search for attackers further away from the place
of arrest, provided that the officer who conducted the sweep
can articulate specific facts to justify a reasonable fear for
the safety of himself and others.
Taylor, 771 A.2d at 1267 (emphasis added).
We find that the evidence presented did not support a protective sweep.
Lieutenant Clowson testified that he went into the house because he “thought
someone was in the house stealing the copper piping.” N.T. at 23; see also
id. at 9, 11, 25, 68. He noted that “[i]ndividuals still may be up there upstairs
sleeping, could be in the kitchen making something, could be in the living
room, could be in an attic hiding out, could be anywhere.” Id. at 52. However,
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Lieutenant Clowson failed to “articulate specific facts,” see Taylor, 771 A.2d
at 1267, to justify his belief that another person, who posed a threat to his
safety, might be in the home. Indeed, there were no emergent circumstances
present. There was no evidence indicating that a person was unlawfully at the
residence at that time or that anyone was in danger that would justify a
warrantless entry into the residence. Lieutenant Clowson’s reasons for
entering the premises – that he believed someone might be stealing copper
piping or may have been sleeping, making food, or somewhere else in the
house – are not circumstances indicative of a fear for safety or the safety of
others. Without any specific facts to substantiate a reasonable fear of safety,
the warrantless search of the house was not justifiable as a protective sweep.
The Commonwealth’s additional argument that the plain view doctrine
applies is also without merit. “The plain view doctrine provides that evidence
in plain view of the police can be seized without a warrant.” Commonwealth
v. Luczki, 212 A.3d 530, 546 (Pa.Super. 2019) (citation omitted). However,
“inherent in the plain view doctrine is the principle the seized object must not
have been put in plain view as a result of unlawful police conduct.”
Commonwealth v. Heidelberg, 267 A.3d 492, 504 (Pa.Super. 2021) (en
banc) (citation omitted); see also Texas v. Brown, 460 U.S. 730, 737
(1983) (stating the “question whether property in plain view of the police may
be seized [ ] must turn on the legality of the intrusion that enables them to
perceive and physically seize the property in question.”). Indeed, under the
plain view doctrine, a warrantless seizure of an item is only permissible when:
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“1) an officer views the object from a lawful vantage point; (2) it is
immediately apparent to him that the object is incriminating; and (3) the
officer has a lawful right of access to the object.” Heidelberg, 267 A.3d at
504 (citation omitted).
Here, since the search of Berkheimer’s house was an unlawful protective
sweep, Lieutenant Clowson did not observe the seized contraband from a
lawful vantage point nor had a lawful right of access to it. See id. Thus, the
plain view doctrine was not applicable.
In its second issue raised in its Statement of Issues Involved, the
Commonwealth alleges the trial court “misapplied law to the facts in placing
lesser weight to a concerned citizen directly calling the police department than
if they called 911[.]” Commonwealth’s Br. at 5. According to the
Commonwealth, “[r]ather than relying on the training and experience of an
18-year police veteran, the court placed undue weight on the fact that the
reporting neighbor called the police station rather than dialing 911.” Id. at 20.
It argues that “[w]hether an exigency existed when the police arrived to
investigate must be determined by the investigating officer and must not be
dictated by whether or not a concerned lay[]person called the police station
rather than calling 911.” Id. at 21.
This issue is without merit. Although the court referenced the fact that
Berkheimer’s neighbor called the non-emergency line instead of 911, it was
just one of the many factors that the court considered in support of its grant
of suppression. The court stated:
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[T]here was no evidence presented to establish that the break[-]
in was in progress. A neighbor contacted the police department
indicating certain facts that they observed. However, they did not
witness anybody in or around the residence. There was no
evidence to suggest that any individual was unlawfully at the
residence at that time. Therefore, there was no evidence that law
enforcement was in pursuit of a fleeing felon or that the suspect
would escape if not swiftly apprehended prior to a warrant being
obtained. In addition, there was no proof that any evidence would
be destroyed if the police took time to obtain a warrant. There was
no effort at contacting the lawful owner of the residence who was
believed to be out of the area. While we recognize that members
of the community contacting the police department at the borough
building is not uncommon in Roaring Spring, the fact that the
neighbor did not contact 911 also suggests that the neighbor did
not view the matter as an emergency. Simply put, there was no
evidence that the situation at hand was in fact exigent.
Trial Court Opinion, filed May 17, 2022, at 7.
The record supports the court’s factual findings. We agree that no
exigent circumstances existed. Thus, we affirm the order granting the motion
to suppress.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2023
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