J-A20025-20
2020 PA Super 280
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES HAWKINS :
:
Appellant : No. 1524 WDA 2019
Appeal from the PCRA Order Entered September 16, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007924-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
OPINION BY OLSON, J.: FILED DECEMBER 10, 2020
Appellant, James Hawkins, appeals from the order entered on
September 16, 2019, which denied his petition filed under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In this Court’s October 31, 2018 memorandum, we summarized the
underlying facts and procedural posture of this case:
On June 11, 2015, [City of Pittsburgh Police Officer Paul Abel]
received a complaint from a female[, named M.H.,] that she
was punched in the face by Appellant. [Officer Abel]
observed that [M.H.] had a black eye. [M.H.] was the former
intimate partner of Appellant. [Officer Abel] responded to
[Appellant’s residence at 1623 Federal Street, in the City of
Pittsburgh,] that evening but nobody appeared to be home
at the residence. [1623 Federal Street is a multi-unit
apartment building, with one main entry door; Appellant
resided in the building’s third-floor apartment].
[Officer Abel did not obtain either an arrest warrant for
Appellant or a search warrant for Appellant’s apartment.
Nevertheless, Officer Abel and other officers] responded to
[Appellant’s] residence the following day. [The] officers
knocked on the [front] door [to the apartment complex] and
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nobody immediately responded but the officers could hear
several people moving around inside the residence. [The]
officers observed a trash bag on the sidewalk outside the
building. Inside the bag was a Verizon telephone bill
addressed to Appellant and what appeared to be plastic
baggy “diapers,” which were described as the remaining
portion of plastic baggies after the corners are cut off to be
used to package drugs.
Shortly thereafter, Melissa Dono, Appellant’s roommate,
opened the door to the residence. Ms. Dono confirmed that
Appellant was inside the residence and permitted the officers
to enter the residence.
In the entryway of the residence, officers observed an empty
stamp bag of heroin on the floor. Appellant was placed under
arrest. He was asked to consent to a search of the residence
but refused consent. Molly Alexander, who identified herself
as Appellant’s girlfriend, then advised officers that she was
diabetic and needed her medicine. She advised that her
medicine was inside her purse, which was located inside a
larger bag in Appellant’s bedroom. The purse was located in
Appellant’s bedroom next to the bag Ms. Alexander had
described. Sticking out of the purse was another bag with
the name, “Crown Royal” on it, and which contained bricks of
heroin and baggies of crack cocaine. Marijuana was
recovered from inside the purse. Ms. Alexander conceded
that the marijuana was hers but she denied knowledge of the
other drugs inside the “Crown Royal” bag found in her purse.
Both Ms. Alexander and Appellant were arrested
On February 2, 2016, the day of trial, Appellant's counsel
attempted to present a motion to suppress evidence. The
Commonwealth objected to the late filing, and the trial court
denied the motion without a hearing because it was not
timely filed. See Pa.R.Crim.P. 579 (requiring generally that
pre-trial motions shall be filed and served within 30 days after
arraignment). After a non-jury trial, Appellant was convicted
of one count of possession of heroin, one count of possession
of cocaine, and one count of possession with intent to deliver
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heroin [(“PWID”).1] On April 21, 2016, the trial court
[sentenced Appellant to serve] two and one-half years to five
years [in prison,] followed by five years of probation[,] for
the [PWID] conviction, and imposed no further penalty for
the remaining crimes[.]
Commonwealth v. Hawkins, 200 A.3d 620 (Pa. Super. 2018) (unpublished
memorandum) at 1-3 (quotations, citations, corrections, and some
capitalization omitted).
On January 23, 2017, Appellant filed a timely, pro se PCRA petition. The
PCRA court appointed counsel to represent Appellant and counsel filed an
amended petition on Appellant’s behalf. Within the amended petition,
Appellant claimed that his trial counsel was ineffective for failing to file a
motion to suppress the evidence in his case. Specifically, Appellant claimed,
the police officers violated his rights under the Fourth Amendment of the
United States Constitution and Article 1, Section 8 of the Pennsylvania
Constitution because they entered his home and placed him under arrest
without obtaining a warrant that authorized either Appellant’s arrest or a
search of his residence. See Appellant’s Amended PCRA Petition, 8/14/17, at
3.
On October 24, 2017, the PCRA court notified Appellant that it intended
to dismiss his petition in 20 days, without holding a hearing. PCRA Court
Order, 10/24/17, at 1; see also Pa.R.Crim.P. 907(1). The PCRA court finally
dismissed Appellant’s petition on December 6, 2017. PCRA Court Order,
____________________________________________
1 35 P.S. § 780-113(a)(16) and (30), respectively.
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12/6/17, at 1. Within the PCRA court’s later-filed opinion, the court explained
that the police lawfully arrested Appellant without a warrant under 18
Pa.C.S.A. § 2711(a). This section declares:
§ 2711. Probable cause arrests in domestic violence
cases
(a) General rule.--A police officer shall have the same right
of arrest without a warrant as in a felony whenever he has
probable cause to believe the defendant has violated section
. . . 2701 (relating to simple assault) . . . against a family or
household member although the offense did not take place in
the presence of the police officer. A police officer may not
arrest a person pursuant to this section without first
observing recent physical injury to the victim or other
corroborative evidence. For the purposes of this subsection,
the term "family or household member" has the meaning
given that term in 23 Pa.C.S. § 6102 (relating to definitions).
18 Pa.C.S.A. § 2711(a).2
Appellant filed a timely notice of appeal and claimed that the PCRA court
erred when it dismissed his petition without holding a hearing. We agreed
and held that Appellant was entitled to a hearing on his petition because, first,
the record was vague as to whether Officer Abel personally observed the
complainant, M.H., with a black eye. Commonwealth v. Hawkins, 200 A.3d
620 (Pa. Super. 2018) (unpublished memorandum) at 6. Second, we held,
“there is an issue of material fact as to whether [Melissa] Dono resided in the
apartment, which bears upon her authority to permit entry. Moreover, there
____________________________________________
2“Former sexual or intimate partners” constitute “family or household
members.” 23 Pa.C.S.A. § 6102.
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is an issue of material fact as to whether [Ms.] Dono ever consented to the
officers' entry into the apartment.” Id. at 8. Thus, since there existed genuine
issues of material fact, we held that the PCRA court erred when it dismissed
Appellant’s petition without holding a hearing and we remanded the case so
that the PCRA court could conduct the requisite evidentiary hearing. See id.
at 8-9.
Following remand, the PCRA court held a hearing on Appellant’s petition.
During the hearing, Appellant presented the testimony of: himself; his
co-defendant, Molly Alexander; City of Pittsburgh Police Officer Paul Abel; and,
his trial counsel, Joseph Paletta, Esquire (hereinafter “Attorney Paletta”).
Crucially, however, Appellant did not present Melissa Dono as a witness during
the hearing.
At the time of the events, Appellant resided in an apartment, on the
third floor of a three-floor apartment building. See N.T. PCRA Hearing,
6/10/19, at 16. Molly Alexander testified that other residents lived in the
apartment building; however, she testified, no one else lived in the third-floor
apartment but Appellant. Id. at 16-17.
Ms. Alexander testified that, on the day in question, she was visiting
Appellant and, “[a]t some point . . . there were police officers banging on the
door and some people went down and let them in.” Id. She testified that
Officer Abel and three or more officers entered the apartment; afterwards,
she was searched and then moved to another room. Id. at 18-19.
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Ms. Alexander testified that she is diabetic and thus asked the officers if
she could get her insulin. She testified: “[the officers] said they would get it.
So I allowed them to go into my purse that was in the other room. . . . They
brought my purse to me and said that they found . . . a purple bag inside with
drugs in it.” Id. at 21-22. Ms. Alexander was then arrested.
Officer Paul Abel next testified at the PCRA hearing. As Officer Abel
testified, at approximately 5:00 p.m. on June 12, 2015, he and “more than
four” other officers arrived at the multi-unit apartment building where
Appellant resided, intending to arrest Appellant for assaulting his former
intimate partner, M.H. Id. at 34-35. Officer Abel testified that Appellant
resided on the building’s third floor and that all relevant events occurred
during the daylight. Id. at 35 and 38.
As Officer Abel testified, he “pounded on the [main apartment-complex
door] for [approximately] ten minutes” and, during this time, he announced
“Police. Open up.” “a couple of times.” Id. at 36. He testified that he did
this because “[i]t [was] an apartment building. It was more than one
apartment.” Id. Eventually, Melissa Dono opened the main apartment
complex door. Officer Abel testified:
Melissa Dono opens the door. I asked who she was. She
identified herself. We asked her where she lived. She stated
up on the third floor. We asked who she lived with. She
stated [Appellant]. We asked if . . . he was there right then.
She said, “Yes. He is upstairs. I’ll go get him.” We followed
her up the stairs. He was at the door of his own apartment[.]
Id. at 38.
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Officer Abel also offered a slightly different version of the events. He
testified that, when Ms. Dono opened the front door:
She said, “Come in. He’s upstairs.” And we followed her
upstairs.
...
[S]he led us up to the [third-floor apartment] door. She
opened [the door]. [Appellant] was standing there. . . .
[T]here was a stamp bag [of heroin] laying on the floor right
there in plain view, and [Appellant] was taken into custody.
Id. at 38, 44, and 45.
Officer Abel testified that Ms. Dono “had a mattress in the front room
[of the apartment] and some bags with her stuff in.” Id. at 41. Officer Abel
also testified that Ms. Dono told him that “[s]he lived in the front.” Id.
Regarding M.H.’s black eye, Officer Abel testified that: he “personally
saw [M.H.’s] black eye;” M.H. told him that Appellant “struck her;” and, M.H.
told him that Appellant “gave her the black eye . . . [a] day or two before
[Officer Abel] talk[ed] to her.” Id. at 44 and 46-47. Officer Abel also testified
that M.H. told him she presently lived with Appellant and she “had sexual
relations with [Appellant].” Id. at 46-47.
Officer Abel testified that he went to Appellant’s residence on the day
he first saw M.H., “but nobody was there.” Therefore, Officer Abel testified
that he went home and, at approximately 5:00 p.m. the next day, he went to
Appellant’s residence and arrested Appellant for domestic violence. Id. at
34-35.
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Appellant next testified at the hearing. Appellant testified that he lived
in an apartment building, which was located at 1623 Federal Street, in
Pittsburgh. He testified: “[i]t was a three-story apartment [building]. At the
very bottom was its own apartment. It was abandoned. And on the second
floor there was another apartment which a guy named Joe lived in. And then
I had my apartment on the very top of the apartment building.” Id. at 50.
Appellant testified that, on the day in question:
I was a few feet behind Melissa Dono when she had answered
the door. The cops was at the door. They said, ‘Is
[Appellant] there?’ . . . [S]he turned and the cops were right
behind her and they came up and arrested me. I was about
– I’d say about five feet behind her, you know. I was at the
bottom of the steps close to the front door. They arrested
me. . . . From the beginning they started looking around for
drugs and things like that.
Id. at 51.
Appellant testified that the police handcuffed him on the first floor, near
the apartment building’s main door. Id. at 52. He testified that the police
then walked him back up to his third-floor apartment and asked him whether
they could search his apartment. Appellant testified that he told the police
no, but the police began searching his apartment anyway. Id. at 52-53.
After hearing the testimony, the PCRA court concluded that: Officer
Abel personally observed the complainant, M.H., with a black eye; Melissa
Dono lived in the apartment with Appellant; and, Ms. Dono provided the
officers with valid consent to enter the apartment. PCRA Court Order,
9/16/19, at 1-2; PCRA Court Opinion, 2/20/20, at 3 and 6.
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On September 16, 2019, the PCRA court denied Appellant’s petition.
Appellant filed a timely notice of appeal and now raises one claim to this Court:
Whether trial counsel gave ineffective assistance when he
failed to file a timely pretrial motion to suppress on behalf of
Appellant?
Appellant’s Brief at 6.
“Under the applicable standard of review, we must determine whether
the ruling of the PCRA court is supported by the record and is free of legal
error. The PCRA court's credibility determinations, when supported by the
record, are binding on this Court.” Commonwealth v. Spotz, 18 A.3d 244,
259 (Pa. 2011) (citations omitted). “However, this Court applies a de novo
standard of review to the PCRA court's legal conclusions.”
Id.
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “ineffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii) (some capitalization omitted).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
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(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted).
Appellant claims that his trial counsel was ineffective for failing to file a
suppression motion. According to Appellant, his underlying claim has arguable
merit – and the evidence against him should have been suppressed – because
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the police entered his home and placed him under arrest without obtaining
either a search warrant or an arrest warrant. Appellant’s Brief at 35. Further,
Appellant claims, the warrantless entry into his apartment was not justified by
either exigent circumstances or valid consent. Id. at 35-53. Finally, Appellant
claims, his warrantless arrest was unlawful because the police did not observe
a “recent physical injury” on the complainant, M.H., which was necessary to
support a warrantless arrest under 18 Pa.C.S.A. § 2711. Id. at 52-53. We
first consider whether the police were justified in entering Appellant’s
apartment without a warrant; we then consider whether Appellant’s
warrantless arrest was lawful.
“Under the Fourth Amendment, searches and seizures without a warrant
are presumptively unreasonable, subject only to specifically established
exceptions.” Commonwealth v. Wilmer, 194 A.3d 564, 567-568 (Pa. 2018)
(quotations and citations omitted). One exception to the warrant requirement
is a consent search.3
Id. at 568. “The central Fourth Amendment inquiries
in consent cases entail assessment of the constitutional validity of the
____________________________________________
3 Within Appellant’s brief, Appellant argues at length that exigent
circumstances did not justify the warrantless entry into his apartment. See
Appellant’s Brief at 35-50. We agree that exigent circumstances did not justify
the warrantless entry into Appellant’s home. Nevertheless, this conclusion
does not entitle Appellant to relief, as the PCRA court did not base its decision
on the existence of exigent circumstances. Instead, the PCRA court held, the
warrantless entry was justified based upon Ms. Dono’s valid consent. See
PCRA Court Opinion, 2/20/20, at 4.
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citizen/police encounter giving rise to the consent; and, ultimately, the
voluntariness of consent.” Commonwealth v. Strickler, 757 A.2d 884, 888
(Pa. 2000). “Where the underlying encounter [between the citizen and the
police] is found to be lawful, voluntariness becomes the exclusive focus.”4
Id.
at 888-889.
As to the voluntariness of an individual’s consent, we have declared:
[during the suppression hearing,] the Commonwealth bears
the burden of establishing that a consent is the product of an
essentially free and unconstrained choice – not the result of
duress or coercion, express or implied, or a will overborne –
under the totality of the circumstances. While knowledge of
the right to refuse to consent to the search is a factor to be
taken into account, the Commonwealth is not required to
demonstrate such knowledge as a prerequisite to establishing
a voluntary consent. Additionally, although the inquiry is an
objective one, the maturity, sophistication and mental or
emotional state of the defendant (including age, intelligence
and capacity to exercise free will), are to be taken into
account.
Since both the tests for voluntariness and for a seizure
centrally entail an examination of the objective
circumstances surrounding the police/citizen encounter to
determine whether there was a show of authority that would
impact upon a reasonable citizen-subject's perspective, there
is a substantial, necessary overlap in the analyses.
. . . [T]he following factors outlined [in Strickler] are
pertinent to a determination of whether consent to search is
voluntarily given: 1) the presence or absence of police
excesses; 2) whether there was physical contact; 3) whether
police directed the citizen's movements; 4) police demeanor
____________________________________________
4 Appellant does not claim that Ms. Dono was seized prior to giving the officers
consent to enter either the apartment building or Appellant’s third-floor
apartment.
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and manner of expression; 5) the location of the interdiction;
6) the content of the questions and statements; 7) the
existence and character of the initial investigative detention,
including its degree of coerciveness; 8) whether the person
has been told that he is free to leave; and 9) whether the
citizen has been informed that he is not required to consent
to the search.
Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) (en banc)
(quotations, citations, and corrections omitted), quoting Strickler,
757 A.2d
at 901-902. “With regard to consent, ‘voluntariness’ is a question of fact to
be determined from the totality of the circumstances.” Commonwealth v.
Fredrick,
230 A.3d 1263, 1267 (Pa. Super. 2020); Schneckloth v.
Bustamonte,
412 U.S. 218, 227 (1973) (“the question whether a consent to
a search was in fact ‘voluntary’ or was the product of duress or coercion,
express or implied, is a question of fact to be determined from the totality of
all the circumstances”).
The PCRA court concluded that Melissa Dono lived in the apartment with
Appellant and that Ms. Dono validly consented for the officers to enter the
apartment.5 PCRA Court Order, 9/16/19, at 1-2; PCRA Court Opinion,
2/20/20, at 6. On appeal, Appellant claims that the PCRA court erred in
____________________________________________
5 During the PCRA hearing, Appellant testified that he was arrested on the first
floor of the apartment building and that the police then marched him back up
to his third-floor apartment. See N.T. PCRA Hearing, 6/10/19, at 50-53.
Further, both Appellant and Molly Alexander testified that Ms. Dono did not
live in Appellant’s apartment. See id. at 17 and 50-53. Nevertheless, the
PCRA court did not credit Appellant’s version of the events and the PCRA court
did not believe Appellant’s and Ms. Alexander’s testimony that Ms. Dono did
not live in the apartment. See PCRA Court Opinion, 2/20/20, at 1-7.
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concluding that Ms. Dono consented to the officers’ entry because the officers
“ordered the occupants to open the door” when they declared “Police. Open
up.” and, relatedly, because the officers used intimidation to gain access to
Appellant’s residence.6 Appellant’s Brief at 52. This claim fails.
The problem with Appellant’s claim lies, initially, in the fact that
Appellant is seeking post-conviction collateral relief and, thus, Appellant bears
____________________________________________
6 On appeal, Appellant does not contest the PCRA court’s factual finding that
Ms. Dono possessed either common or apparent authority to enter Appellant’s
apartment. See Appellant’s Brief at 35-57. Nevertheless, we note that a third
party who possesses common authority or apparent authority over the area
to be searched may validly consent to a search. “Common authority rests on
mutual use of the property by persons generally having joint access or control
for most purposes, so that it is reasonable to recognize that any of the
co-inhabitants [or co-possessors] has the right to permit the inspection in his
own right and that the others have assumed the risk that one of their number
might permit the common area to be searched.” Commonwealth v.
Gibbons, 549 A.2d 1296, 1300-1301 (Pa. Super. 1988) (citations and
corrections omitted).
Regarding apparent authority, our Supreme Court has held:
A third party with apparent authority over the area to be
searched may provide police with consent to search. Third
party consent is valid when police reasonably believe a third
party has authority to consent. Specifically, the apparent
authority exception turns on whether the facts available to
police at the moment would lead a person of reasonable
caution to believe the consenting third party had authority
over the premises. If the person asserting authority to
consent did not have such authority, that mistake is
constitutionally excusable if police reasonably believed the
consenter had such authority and police acted on facts
leading sensibly to their conclusions of probability.
Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007) (quotations and
citations omitted).
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the burden of production and persuasion in this case. See Rivera, 10 A.3d
at 1279 (holding that trial counsel is presumed to be effective and “the burden
of demonstrating ineffectiveness rests on [A]ppellant”). Therefore, during the
PCRA hearing, Appellant was required to prove that, if his trial counsel had
filed a motion to suppress, the Commonwealth would have been unable to
prove that Ms. Dono validly consented to the entry and search. See Kemp,
961 A.2d at 1261 (“[during the suppression hearing,] the Commonwealth
bears the burden of establishing that a consent is the product of an essentially
free and unconstrained choice – not the result of duress or coercion, express
or implied, or a will overborne – under the totality of the circumstances”).
However, Appellant did not present Ms. Dono as a witness during the
PCRA hearing and there is no evidence that Ms. Dono even heard the officers
declare “Police. Open up.” This omission is glaring, since Officer Abel was
knocking on the main, first-floor door to the apartment building – and not
Appellant’s specific, third-floor apartment door – and since Officer Abel
specifically testified that, during the ten minutes he was “pounding” on the
main door to the apartment building, he announced “Police. Open up.” only
“a couple of times.” Further, and relatedly, since Ms. Dono did not testify at
the hearing, there is no evidence as to how long Ms. Dono heard the officers
pounding on the apartment building’s main door, there is no evidence as to
how many officers were in front of the door when Ms. Dono opened it, and
there is no direct evidence that the actions of the police produced, in Ms.
Dono, a will overborne which deprived her of the capacity to make an
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essentially free and unconstrained choice. In the absence of such evidence,
we are unable to conclude that Appellant met his burden of establishing that
Ms. Dono’s consent was anything other than voluntary. Therefore, we hold
that Appellant’s first claim on appeal fails.
Appellant next claims that his warrantless arrest, under 18 Pa.C.S.A.
§ 2711(a), was unlawful because the police did not observe a “recent” physical
injury on the complainant, M.H.
As noted above, 18 Pa.C.S.A. § 2711 declares:
§ 2711. Probable cause arrests in domestic violence
cases
(a) General rule.--A police officer shall have the same right
of arrest without a warrant as in a felony whenever he has
probable cause to believe the defendant has violated section
. . . 2701 (relating to simple assault) . . . against a family or
household member although the offense did not take place in
the presence of the police officer. A police officer may not
arrest a person pursuant to this section without first
observing recent physical injury to the victim or other
corroborative evidence. For the purposes of this subsection,
the term "family or household member" has the meaning
given that term in 23 Pa.C.S. § 6102 (relating to definitions).
18 Pa.C.S.A. § 2711(a).
Appellant’s claim on appeal is limited: he argues only that his
warrantless arrest under Section 2711(a) was illegal because the police did
not observe a “recent” physical injury on M.H.7 See Appellant’s Brief at 42.
____________________________________________
7 Appellant analyzes, at length, the Pennsylvania Supreme Court’s opinion in
Commonwealth v. Wright, 742 A.2d 661 (Pa. 1999). See Appellant’s Brief
at 41-48. The main issue in Wright, however, was whether 18 Pa.C.S.A.
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According to Appellant, since his arrest occurred “between two [] to three []
days after [M.H.] said . . . she was assaulted[, t]he potential for imminent
violence had dissipated” and exigent circumstances did not justify his
warrantless arrest. See id. at 50-52. This claim fails.
At the outset, Appellant’s claim that exigent circumstances did not
justify his warrantless arrest immediately fails, as Officer Abel utilized the
statutory authority of 18 Pa.C.S.A. § 2711(a) to arrest Appellant without a
warrant. See 18 Pa.C.S.A. § 2711(a) (“A police officer shall have the same
____________________________________________
§ 2711(b) permitted a warrantless search of the defendant’s home. Section
2711(b) declares:
(b) Seizure of weapons.--The arresting police officer shall
seize all weapons used by the defendant in the commission
of the alleged offense.
18 Pa.C.S.A. § 2711(b).
The Wright Court held that Section 2711(b) merely makes the seizure of
weapons from the defendant “mandatory,” when such a seizure “was
previously permissive.” However, the Wright Court held that the “the terms
of [Section 2711(b)] do not purport to address the means that may be used
in order to discover or locate such weapons.” Wright, 742 A.2d at 664
(emphasis added). Regarding “the means” by which a search and seizure
must take place, the Wright Court held that “the seizure of a weapon
pursuant to Section 2711(b) is subject to the limits of existing Fourth
Amendment jurisprudence.”
Id.
Put simply, Wright is solely concerned with the proper interpretation of
Section 2711(b) – and whether that section authorizes an unstated
warrantless search and seizure of weapons from a defendant’s home. The
case at bar, however, concerns a warrantless arrest under Section 2711(a),
where Section 2711(a) specifically authorizes a warrantless arrest under
certain circumstances. As such, Wright is inapposite to the case at bar and
the opinion does not provide Appellant with an avenue for relief.
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right of arrest without a warrant as in a felony whenever he has probable
cause to believe the defendant has violated section . . . 2701 (relating to
simple assault) . . . against a family or household member although the
offense did not take place in the presence of the police officer”); see also
Florida v. White, 526 U.S. 559, 565 (1999) (“the Fourth Amendment permits
warrantless arrests in public places where an officer has probable cause to
believe that a felony has occurred”); Pa.R.Crim.P. 502(2)(b) (“Criminal
proceedings in court cases shall be instituted by . . . an arrest without a
warrant . . . upon probable cause when the offense is a felony or murder”).
Therefore, the only question on appeal is whether Officer Abel effected the
arrest after observing a “recent” physical injury to M.H. See Appellant’s Brief
at 50-52.
The legislature did not specifically define the phrase “recent physical
injury” in 18 Pa.C.S.A. § 2711(a). Moreover, the term “recent” is, by general
definition, a vague and imprecise word, whose meaning is highly dependent
upon the context in which it is being used. See NEW OXFORD AMERICAN
DICTIONARY 1421 (2001) (defining the term “recent” as “having happened,
begun, or been done not long ago or not long before; belonging to a past
period of time, comparatively close to the present”). Nevertheless, we
conclude that Section 2711(a)’s statutory requirement of a “recent physical
injury” is undoubtedly satisfied in this case.
During the PCRA hearing, Officer Abel testified that the complainant,
M.H., told him that Appellant “gave her the black eye . . . [a] day or two before
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[Officer Abel] talk[ed] to her.” N.T. PCRA Hearing, 6/10/19, at 46-47. Officer
Abel testified that, at approximately 5:00 p.m. the next day, he went to
Appellant’s residence and arrested Appellant for domestic violence. Id. at
34-35.
This is not a case where the police observed a scar, with the initial injury
having been inflicted years ago. Rather, in this case, Officer Abel observed
bruising, which is temporary in nature, from an attack that occurred one or
two days prior. Allowing for the one day of delay between the report and the
arrest, we conclude that a lapse of two to three days after the injurious event
– while the temporary bruising from the injurious event is still observable –
unquestionably qualifies as a “recent” physical injury under Section 2711(a).
To be sure, Section 2711(a) specifically authorizes the warrantless arrest of
perpetrators of domestic violence. By using such a vague term as “recent” in
Section 2711(a), the legislature apparently realized that victims of domestic
violence might delay reporting abuse “because they [might] believe it is a
private matter or for fear that the violence would intensify” and that there
might be some delay between the report and the police action. See S.K.C. v.
J.L.C., 94 A.3d 402, 415 n.17 (Pa. Super. 2014) (“[m]ore often than not,
female domestic violence victims do not report the abuse because they believe
it is a private matter or for fear that the violence would intensify”), quoting,
Christina Samons, Same–Sex Domestic Violence: The Need for Affirmative
Legal Protections at All Levels of Government, 22 S. CAL. REV. L. & SOC. JUST.
417, 420 (2013) (citation omitted). In such context, a delay of two to three
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days from the injurious event undoubtedly qualifies as “recent.” C.f. 23
Pa.C.S.A. § 6303 (defining “recent act” under the Child Protective Services
Law as: “[a]ny act committed within two years of the date of the report to
the department or county agency”). Appellant’s claim on appeal thus fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2020
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