Opinion
J-S69001-18 No. 193 MDA 2018 No. 474 MDA 2018
01-03-2019
COMMONWEALTH OF PENNSYLVANIA, Appellant v. LORIE ANNE KNELLER, Appellee COMMONWEALTH OF PENNSYLVANIA, Appellant v. RICHARD KNELLER, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 29, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000808-2017 Appeal from the Order Entered February 14, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000809-2017 BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J. MEMORANDUM BY BENDER, P.J.E.:
In these consolidated cases, the Commonwealth appeals from the trial court's orders granting suppression of evidence that was discovered pursuant to a search of the home of Appellees, Lorie Anne and Richard Kneller, by a police officer who was conducting a welfare check on Appellees' minor child. After careful review, we affirm.
The facts of this case were summarized by the trial court, as follows:
On Friday, January 20, 2017, Officer Evans of the Larksville Police Department received a call to assist Luzerne County Children and Youth to check on the welfare of [Appellees'] seven-year-old son, C.K., at [Appellees'] home.... Residing in the home with [Appellees] and C.K. was ... [Appellee Lorie Kneller's] other two sons, fifteen year old L.S., and nineteen year old Austin Feistl (Feistl). Officer Evans and two other police officers arrived and met "Jessica[,"] a Children and Youth employee, at the residence. On Monday of the same week, there had been a report of child abuse stemming from a fight between L.S. and his stepfather, [Appellee] Richard Kneller, at the same residence. Jessica's knock on the door was answered by ... []Feistl[].... Feistl said that C.K. was inside the home, but that his parents, [Appellees]..., were not at home. The officers called [Lorie Kneller], who said she was shopping and doing errands that she would be on her way home. C.K.'s father, Richard Kneller, was contacted but was at work. After waiting for over an hour for [Lorie Kneller] to return home, the officers asked Feistl if they could check on C.K. Officer Evans testified that the door was halfway open and that he could smell a foul smell coming from inside the residence and that even before entering[,] he could see that there were clothes thrown about and that the home was cluttered. After Feistl gave consent to check on C.K.,2 Officer Evans, his partner Officer Stitzer, and Jessica from Children and Youth entered the "bi-level ranch" home with Feistl. Officer Evans testified that when they went up the steps, the living room, dining room, and kitchen area was all open, and ... the first thing he noticed was all the stuff thrown about the house. He said it was "absolutely disgusting" with stains on the carpet and an electric heater plugged into an extension cord. He testified that the space heater was the only source of heat throughout the house. He testified that when he looked straight, he could see into the kitchen area, and ... the sink was full of dishes and dirty[,] moldy water. He saw several flies "as if they were Fruit Flies (sic) or fleas around." He further testified that before locating C.K., [Feistl] led him down ... the hallway[,] which contained three bedrooms and a bathroom. C.K. was not in his bedroom, which happened to be the first bedroom Officer Evans
passed. Officer Evans was able to see inside the first bedroom because there was no door on the hinges. Inside the first bedroom, which belonged to C.K., there was a "kid's bed" and a nightstand or dresser with burnt cigarettes and ashes right on it. C.K. was located in the second bedroom lying on his side on the bed. There was a big screen TV on the bed, and there were "extension cords and stuff" all thrown around the bedroom, which ... Officer Evans determined belonged to Feistl. Also on the bed was a fan and a PlayStation and games. There was a second bed inside that bedroom that had "stuff and garbage" thrown on top of it.
2 Officer Evans testified that Feistl gave consent for him to check on C.K., but Feistl testified that he told the officers he didn't "feel comfortable" with them coming in to [sic] the home, and that instead of verbally consenting, he "just kind of stepped out of the way." We found Officer Evans' version of events to be believable and credible as to the subject of Feistl's consent to check the welfare of C.K.
Even after locating C.K. for his welfare check, the officers continued their tour of the home. The door to the third bedroom, which Officer Evans testified that he believed belonged to ... [Appellees], was halfway open and Officer Evans noticed there was a brown carpet with mold stains all over it and "stuff ... thrown all over." He then proceeded to the bathroom and turned on the faucet. He testified that he saw "...stains, mold inside the sink, and inside there, no running water." Further, he saw that the toilet had very little water inside, and that the bathroom window was open halfway with no screen. Additionally, he testified that there was no running water in the shower.
Officer Evans said that they then went down the steps and into the basement of the bi-level. In the basement, Officer Evans was able to see clothes thrown around[,] ... debris and garbage thrown everywhere[,] and ... it "was completely disgusting." He said that when he looked to the left, he saw a door that was closed and a laundry room door that was halfway open. In the laundry room, Officer Evans saw a water heater completely covered with clothes at the base, which he testified was a fire hazard "if there's an open flame inside there." Through the laundry room, Officer Evans checked another bathroom "that was disgusting[,] too[,] with stains and no water, as well." There was another room in the basement that he was unable to access[,] although he tried. He testified that although the door was open slightly, he "had to push
it a little bit, and [he] couldn't get behind it because there was so much clutter behind it."Trial Court Opinion (TCO), 4/26/18, at 1-4 (opinion filed in Lorie Kneller's case; citations to the record omitted).
While going through the residence, Officer Evans photographed all of the areas of the house and took approximately 50 photographs. While discussing the photographs, he showed a picture of the open refrigerator in the kitchen. He showed a picture of the living room area depicting that the baseboard heat had been "taken apart."
Officer Evans requested that the code enforcement officer respond due to fire hazards, no running water in the home, and no safe sleeping area for the children. The home was condemned and C.K. was taken into the protective custody of Children and Youth [Services].
The trial court adopted this opinion in Richard Kneller's case, as well. See Trial Court Opinion, 5/14/18, at 2 (Richard Kneller's case).
Based on these facts, Lorie Kneller was arrested and charged with two counts of endangering the welfare of a child (EWOC), 18 Pa.C.S. § 4304(a)(1), and Richard Kneller was arrested and charged with one count of EWOC. On July 6, 2017, Lorie Kneller filed a motion to suppress evidence obtained during the search of her home. A hearing was conducted on August 30, 2017. On December 28, 2017, the trial court issued an order granting the motion in part, and denying it in part. Specifically, the court ruled that:
Officer Evans obtained the consent of Austin Feistl to enter the residence in order to do a welfare check on C.K., but did not request consent to do a search.
a. Anything in plain view of the officer is admissible without a warrant to search. Commonwealth v. Anderson , [40] A.3d 1245 (Pa. Super. 2012).
Trial Court Order, 12/29/17, at 1 (Lorie Kneller's case). The Commonwealth filed a timely notice of appeal, certifying that the court's order terminates or substantially handicaps the prosecution of Lorie Kneller's case. See Pa.R.A.P. 311(d).b. Those items that did not fall within the plain view exception to the warrant requirement will be suppressed. Specifically, photographs and testimony regarding any evidence discovered after C.K. was located for his welfare check are not admissible. See Arizona v. Hicks , 480 U.S. 321, 107 S.Ct. 1149 (1987).
On January 10, 2018, Richard Kneller filed a motion to suppress that raised the same issues as asserted by Lorie Kneller. On February 8, 2018, the parties agreed to submit the transcript of the August 30, 2017 suppression hearing in Lori's case for the court's consideration in ruling on Richard's motion to suppress. On February 14, 2018, the court issued an order identical to that quoted above, thus granting in part, and denying in part, Richard's motion to suppress. Again, the Commonwealth filed a timely notice of appeal with the requisite certification under Rule 311(d).
In both cases, the trial court issued a Pa.R.A.P. 1925(b) order, notifying the Commonwealth that any issue not raised in a timely-filed statement would be deemed waived. The Commonwealth timely complied with those orders, filing identical Rule 1925(b) statements in both cases, which preserved the following, single issue for this Court's review:
The [c]ourt erred when it granted [Appellees'] Motion[s] to Suppress because the condition of the house was in plain view or in the alternative would have been inevitably discovered since the
condition of the house provided probable cause to obtain a warrant.Rule 1925(b) Statement (Lorie Kneller's case), 2/12/18, at 1; Rule 1925(b) Statement (Richard Kneller's case), 3/29/18, at 1. The trial court issued a Rule 1925(a) opinion on April 26, 2018.
On May 29, 2018, the Commonwealth filed with this Court an "Application for Consolidation" of Lorie Kneller's and Richard Kneller's appeals. This Court granted that application by per curiam order on June 11, 2018. The Commonwealth then submitted a single brief, stating the following issue for our review: "Whether the court erred when it suppressed the photographs of the house and any of the observations of the officer after C.K. was located?" Commonwealth's Brief at 3. Appellees submitted individual briefs thereafter.
Initially, we note that:
In appeals from orders granting suppression, our scope of review is limited to the evidence presented at the suppression hearing. In the Interest of L.J., 622 Pa. 126, 79 A.3d 1073, 1088-89 (2013). Thus, we may consider only the evidence from the appellee's witnesses together with the Commonwealth's evidence that, when read in context of the record at the suppression hearing, remains uncontradicted. Id. ; Commonwealth v . Whitlock , 69 A.3d 635, 637 (Pa. Super. 2013). As for the standard of review, we apply no deference to the suppression court's legal conclusions. Whitlock , 69 A.3d at 637. In contrast, we defer to the suppression court's findings of fact, "because it is the fact-finder's sole prerogative to pass on the credibility of the witnesses and the weight to be given to their testimony." Id.Commonwealth v. Davis , 102 A.3d 996, 999 (Pa. Super. 2014) (footnote omitted).
Presently, the Commonwealth first avers that the trial court erred by applying Article I, Section 8 of the Pennsylvania Constitution in granting both Appellees' motions to suppress. According to the Commonwealth, both Appellees failed to adequately raise a claim under the Pennsylvania Constitution, instead relying only on the Fourth Amendment to the United States Constitution to support their suppression claims. In support of its waiver argument, the Commonwealth relies on Commonwealth v. Updike , 172 A.3d 621 (Pa. Super. 2017). There, we concluded that the suppression court erred by applying Article I, Section 8 of the Pennsylvania Constitution, where Updike had "only moved to suppress the ... evidence under the Fourth Amendment of the United States Constitution" in his motion to suppress, and his counsel also "never mentioned the Pennsylvania Constitution at the suppression hearing." Id. at 626.
We recognize that the Commonwealth did not raise this specific claim in its Rule 1925(b) statement. However, it was not clear until the trial court issued its Rule 1925(a) opinion that the court had based its suppression ruling on Pennsylvania constitutional law, rather than its federal counterpart. Therefore, we will not deem the Commonwealth's first issue waived.
We agree with Appellees that their cases are distinguishable from Updike. As they point out, each of them stated in their motions to suppress that, "[u]nder both the United States and Pennsylvania Constitutions, there exists 'a reasonable expectation of privacy associated with one's place of dwelling.'" Omnibus Pretrial Motion (Lorie Kneller Case), 7/6/1, at 2 ¶ 10 (emphasis added); Omnibus Pretrial Motion (Richard Kneller), 1/10/18, at 2 ¶ 10. Lorie reiterated this quote in her brief in support of her motion to suppress that was filed after the suppression hearing. Also, in Lori's brief, she relied on Commonwealth v. Edwards , 735 A.2d 723 (Pa. Super. 1999), which was a decision premised on Article 1, Section 8 of the Pennsylvania Constitution. See Lorie Kneller's Brief at 9 (citing Brief in Support of Defendant's Omnibus Pretrial Motion, 9/13/17, at 2-3); see also Edwards , 735 A.2d at 725. Admittedly, neither Lorie nor Richard provided elaborate discussion about the differences between the federal and Pennsylvania 'inevitable discovery' doctrines, which is the central issue the Commonwealth raises on appeal (as will be discussed herein). However, the Commonwealth did not raise its inevitable discovery claim until it filed its briefs in opposition to Appellees' omnibus pretrial motions, which were filed after the suppression hearing and subsequent to Appellees' briefs.
Thus, we conclude that Appellees' references to the Pennsylvania Constitution distinguishes their cases from Updike , and were sufficient to support the trial court's reliance on Pennsylvania constitutional law in granting their motions to suppress.
Next, the Commonwealth avers that the trial court erred by granting suppression of the evidence discovered during Officer Evans' search of Appellees' home after he located C.K., because that evidence would have been inevitably discovered by lawful means. More specifically, the Commonwealth initially contends that the code enforcement officer would have inevitably conducted a lawful search of Appellees' home.
The Commonwealth does not dispute that Officer Evans' warrantless search of Appellees' home after he located C.K. was illegal.
We need not delve into the details of the Commonwealth's argument, however, as our review of the record demonstrates that it is waived. The Commonwealth did not raise this claim in either of the briefs it filed in response to Appellees' omnibus pretrial motions, and it does not point to where in the record of the suppression hearing it preserved this inevitable discovery argument. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Additionally, the Commonwealth's Rule 1925(b) statement, quoted supra, did not set forth a claim that the code enforcement officer would have inevitably discovered the evidence; instead, the Commonwealth asserted that the evidence would have been "inevitably discovered since the condition of the house provided probable cause to obtain a warrant." Rule 1925(b) Statement (Lorie Kneller's case) at 1 (emphasis added); Rule 1925(b) Statement (Richard Kneller's case) at 1 (emphasis added). The trial court addressed only this probable cause issue in its opinion, and made no mention of the code enforcement officer's inevitably discovering the evidence. Accordingly, the Commonwealth failed to preserve this claim for our review. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").
In any event, we also would deem this argument meritless. In Commonwealth v. Berkheimer , 57 A.3d 171 (Pa. Super. 2012) (en banc), we held that, "where law enforcement officers engage in apparent misconduct by negating the warrant requirement, the Commonwealth only can avoid suppression by demonstrating a source 'truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct.'" Commonwealth v. Perel , 107 A.3d 185, 195 (Pa. Super. 2014) (discussing and quoting Berkheimer , 57 A.3d at 176). Here, the code enforcement officer was called to the scene by Officer Evans, based on the apparent code violations discovered during the officer's illegal search of Appellees' home. The Commonwealth presented no evidence at the suppression hearing - such as the code officer's testimony - to establish that the code officer would have legally inspected Appellees' home, but for Officer Evans' illegal search and report of information to the code officer. Thus, we would conclude that the Commonwealth failed to establish that the code enforcement officer was a 'truly independent source' who would have inevitably discovered the evidence in Appellees' home.
Finally, the Commonwealth challenges the trial court's rejection of its argument that the evidence obtained during Officer Evans' illegal search of Appellees' home would have been inevitably discovered because Officer Evans possessed probable cause to obtain a warrant. Having reviewed the Commonwealth's argument, Appellees' responses, the certified record, and the applicable law, we discern no error in the trial court's decision on this issue, based on the rationale set forth in its April 26, 2018 opinion. See TCO at 8-14. Accordingly, we adopt that portion of the trial court's decision as our own, and affirm the order granting Appellees' suppression motions on this basis.
We add, however, that the Commonwealth's cursory argument that the present cases are distinguishable from the two cases primarily relied upon by the trial court, Berkheimer and Perel , is wholly unconvincing. See Commonwealth's Brief at 12-14. The Commonwealth focuses its argument on inconsequential differences between the facts of those cases and the present. However, the trial court did not premise its reasoning on the facts of Berkheimer or Perel but, instead, on the legal principles that emerged from those decisions.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 01/03/2019
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