J-A06037-22
2023 PA Super 136
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL GOODIS :
:
Appellant : No. 701 WDA 2021
Appeal from the Judgment of Sentence Entered January 8, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001278-2017
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED: July 28, 2023
Appellant, Michael Goodis, appeals from the judgment of sentence
imposed for his convictions of dissemination of child pornography, possession
of child pornography, and criminal use of a communication facility.1 Because
the trial court erred in denying Appellant’s motion to suppress evidence
obtained from a search of his house that violated his rights under the
Pennsylvania Constitution, we are constrained to vacate Appellant’s
convictions and judgment of sentence and remand this case for a new trial.
This case arises out of events in 2014. Between May 14, 2014 and June
1, 2014, Detective Robert Erdley, an Indiana County internet crimes against
children investigator, ran searches for child pornography on the internet using
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6312(c) and (d) and 18 Pa.C.S. § 7512, respectively.
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a law enforcement version of the BitTorrent file sharing program. N.T. Trial
at 72-77, 80-82. In this investigation, Detective Erdley downloaded 22 files
that contained child pornography from IP address 71.60.15.7. Id. at 82-92,
95-96, 104. The BitTorrent program that the IP address 71.60.15.7 was using
to transmit these files was uTorrent 3.4.1, a program that runs on Windows
and Mac computers. Id. at 108. In response to a court order, Comcast, the
internet company that issued the IP address, identified IP address 71.60.15.7
as belonging to Appellant at his house in Export, Pennsylvania in
Westmoreland County. Id. at 99-102.
Detective Erdley provided the information from his investigation to
Lieutenant Robert Jones, a Greensburg, Westmoreland County police officer,
who on September 18, 2014 applied for and obtained a search warrant for
Appellant’s house authorizing search for and seizure of computer hardware,
computer processing units, including storage devices, and computer input and
output devices. N.T. Trial at 102, 135, 186, 205-06; Defendant’s Ex. D.
Lieutenant Jones and two Murrysville police officers executed the search
warrant the same day and seized a computer tower, a tablet computer, a
Synology DiskStation network-attached storage device (NAS), and some other
external hard drives and flash drives. N.T. Trial at 135, 137-40, 146, 152,
155, 205-06.
Lieutenant Jones did a full forensic examination of the computer tower
and all of the external drives other than the NAS and found no child
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pornography on any those items. N.T. Trial at 141-43, 146-48, 211, 215,
217-18. Lieutenant Jones examined the tablet using the access code provided
by Appellant through his counsel and found no child pornography on it. Id.
at 148-51, 211. Lieutenant Jones did not examine the NAS until February 15,
2017, and when he began to make a forensic image of one of the four drives
of that device, the NAS had degraded to 33% and the drive made sounds
indicating imminent failure. Id. at 155-58, 162-63, 225-26, 243. Because
Lieutenant Jones believed that the NAS was likely to fail before forensic
imaging could be completed, he put the drive back in the NAS and instead
attached the NAS to his router, which had no internet access, and accessed
the NAS through its web interface. Id. at 158-65. The NAS did not require
inputting of a password to access its contents. Id. at 162, 229.
Lieutenant Jones found more than 30 child pornography files on the NAS
in a folder labeled “mtemp” with the file path “MEGABIZ-
V3/Data/C/Users/Michael/Desktop/mtemp” that appeared to be backup from
a Windows computer with the network name MEGABIZ-V3. N.T. Trial at 165-
82, 184-88. Many of these files bore names that indicated that they related
to sex acts with minors. Id. at 177-81, 185-86; Commonwealth Exs. 7-8, 10,
14, 16. Lieutenant Jones made a copy onto another device of the NAS’s entire
backup of the MEGABIZ-V3 computer. N.T. Trial at 165-66, 191, 230-31.
No computer with the name MEGABIZ-V3 was found in the search of
Appellant’s house. N.T. Trial at 167, 202. The child pornography files found
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by Lieutenant Jones on the NAS were different from the child pornography
files downloaded by Detective Erdley and none of the files downloaded by
Detective Erdley was found on the NAS or any other computer devices seized
from Appellant’s house. Id. at 178-80, 184-88, 239.
On February 21, 2017, Appellant was charged with dissemination of
child pornography, possession of child pornography, and criminal use of a
communication facility. Appellant filed a motion to suppress the evidence
seized from his house on the ground that the search was conducted in violation
of the requirement that police announce their identity, purpose, and authority
before entering. The trial court held two evidentiary hearings on the motion
to suppress at which Appellant, Lieutenant Jones, and the two Murrysville
police officers who executed the search warrant with Lieutenant Jones all
testified. In addition, security camera video and audio recordings of the
officers’ entry into Appellant’s house to execute the search warrant were
admitted in evidence. On September 17, 2018, the trial court entered an
order denying Appellant’s motion to suppress. Appellant filed a motion for
reconsideration of the denial of his suppression motion, which the trial court
denied.
The NAS, which Lieutenant Jones had left running after he made his
copy of the MEGABIZ-V3 backup, crashed and ceased being able to function
in 2020. N.T. Trial at 241-42. Before the NAS failed, expert witnesses for
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Appellant had an opportunity to examine the NAS in November 2018 and
September 2019. Id. at 243-44.
A jury trial was held from October 7, 2020 to October 9, 2020. The
Commonwealth called Detective Erdley and Lieutenant Jones, who testified
concerning their investigations and what they found as set forth above. Both
of these witnesses testified as expert witnesses, Detective Erdley as an expert
in the field of internet crimes against children, file sharing, and internet
protocol and Lieutenant Jones as an expert in the field of forensic computer
examination. N.T. Trial at 58, 128. It was stipulated by Appellant that the
files downloaded from Appellant’s IP address and more than 30 files found in
the MEGABIZ-V3 mtemp folder on Appellant’s NAS contained photographs,
videotapes or computer depictions of children under the age of 18 engaging
in prohibited sex acts. Id. at 104, 187-88. Appellant testified on his own
behalf and called two expert witnesses, a computer forensics expert who had
examined the NAS and an expert in computer security and computer
networks.
Appellant testified that he was unaware of the child pornography files
that were sent by his IP address and found on the NAS and that he never put
any child pornography and his computers and devices or shared or possessed
child pornography. N.T. Trial at 319-21. Appellant testified that he purchased
the NAS in March or May of 2013 and that he set up the NAS for remote
access. Id. at 309, 370. Appellant testified that MEGABIZ-V3 was a computer
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that he had owned and gave away to a friend in 2013 and that the MEGABIZ-
V3 folders on the NAS came from previous backup devices that were
subsequently backed up on the NAS, but testified that he put some files in
MEGABIZ-V3 folders after he had the NAS and no longer had MEGABIZ-V3.
Id. at 313-17, 331-32. Appellant testified that he was in the business of
producing audio for television commercials, games, and other video
productions and that he used his computers for that work. Id. at 299-303.
Appellant testified that his wireless router was not password protected in 2014
because clients and people he was working with used the computers and he
did not want to have to constantly give out the password. Id. at 304, 336-
37. Appellant testified that one of his neighbors was within wireless range of
his house. Id. at 304-06, 336. Appellant also identified a screenshot of his
wireless router’s port configuration that he testified that he took in 2014
before his NAS and other computer equipment were seized, and that
screenshot was admitted in evidence. Id. at 371-75; Defendant’s Ex. E.
Appellant’s computer forensics expert testified that third parties within
range of the owner’s wireless router can access a computer from outside the
owner’s network if the network is not password protected. N.T. Trial at 280-
81, 291-93, 296-97. The computer forensics expert also testified that he
obtained system logs from the NAS when he examined it in 2019 and those
logs were admitted in evidence. Id. at 268-70; Defendant’s Ex. C. Appellant’s
computer security and computer networks expert testified that the port
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configuration in the screenshot identified by Appellant made Appellant’s NAS
vulnerable to internet access by outsiders. N.T. Trial at 397-401. He also
testified that the NAS system logs showed that the NAS was not turned on
between September 18, 2014 and March 20, 2017 and was not turned on in
February 2017, when Lieutenant Jones testified that he examined it and found
the child pornography. Id. at 410-18, 431.
On October 9, 2020, the jury convicted Appellant of one count of
dissemination of child pornography, 30 counts of possession of child
pornography, and one count of criminal use of a communication facility. N.T.
Trial at 547-49. The trial court, on January 8, 2021, sentenced Appellant to
a term of imprisonment of one year less one day to two years less one day for
the dissemination of child pornography conviction and seven years’ probation
for the criminal use of a communication facility conviction and each of the
possession of child pornography convictions. Sentencing Order. The trial
court ordered that all of the probation sentences were to be served
consecutive to the imprisonment sentence and concurrent to the other
probation sentences and also imposed 25-year registration under the Sex
Offender Registration and Notification Act2 on Appellant. Id.
Appellant filed a timely post sentence motion challenging the sufficiency
and weight of the evidence and also seeking a new trial on the grounds that
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2 42 Pa.C.S. §§ 9799.10-9799.42.
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the Commonwealth spoliated evidence by allowing the NAS to degrade and
fail without obtaining a forensic image, that the trial court erred in admitting
in evidence an internet forum post concerning the firmware in the router port
configuration to which Appellant testified, and that trial counsel was ineffective
in failing to object to statements by the Commonwealth in its opening and
closing. The trial court held a hearing on Appellant’s post sentence motion on
March 12, 2021 at which it heard testimony from Lieutenant Jones on the
spoliation issue and heard argument on the other issues in the post sentence
motion. On May 18, 2021, the trial court entered an order denying Appellant’s
post sentence motion. This timely appeal followed.
In this appeal, Appellant presents the following six issues for our review:
1. At trial, did the court err when it admitted wholesale an
anonymous internet forum post, which the prosecutor then relied
on repeatedly to challenge the credibility of the defendant and a
defense expert?
2. At trial, did the court err when it allowed the prosecutor to
challenge a defense expert to forensically examine a computer
device in court, when the Commonwealth had destroyed that
device and conceded that it could not be examined?
3. At trial, did the prosecutor’s inflammatory rhetoric and personal
opinions prejudice the jury, and was defense counsel ineffective
in failing to object?
4. Did the trial court err in denying defendant’s pretrial motion to
suppress where video evidence plainly showed that officers
executing a search warrant failed to announce their presence and
purpose before entering, and no exigency applied?
5. Did the trial court err in finding that the evidence was sufficient
to sustain the verdict, where no evidence of defendant’s
knowledge was presented?
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6. Did the trial court abuse its discretion in finding that the verdict
was not against the weight of the evidence?
Appellant’s Brief at 4-5 (trial court’s answers omitted). We first address
Appellant’s fifth issue, the sufficiency of the evidence claim, and then address
Appellant’s fourth issue, the denial of Appellant’s motion to suppress. Because
we conclude that the trial court erred in denying the motion to suppress and
that a new trial on all charges is required as a result of that error, we need
not and do not address Appellant’s first, second, third, and sixth issues, all of
which seek a new trial on other grounds.
Our standard of review in a challenge to the sufficiency of the evidence
is well-settled:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence.
Commonwealth v. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (quoting
Commonwealth v. Colon–Plaza,
136 A.3d 521 (Pa. Super. 2016)). In
applying this standard, we consider all of the evidence that was admitted at
trial. Sauers,
159 A.3d at 11; Colon–Plaza,
136 A.3d at 526.
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The elements of the offense of dissemination of child pornography are
that the defendant knowingly sold, distributed, delivered, disseminated,
transferred, displayed or exhibited to others a depiction of a child under the
age of 18 engaged in a prohibited sex act or simulation of such an act or
knowingly possessed such a depiction for the purpose of sale, distribution,
delivery, dissemination, transfer, display or exhibition. 18 Pa.C.S. § 6312(c).
The elements of possession of child pornography are that the defendant either
knowingly possessed or controlled a depiction of a child under the age of 18
engaged in a prohibited sex act or simulation of such an act or intentionally
viewed such a depiction. 18 Pa.C.S. § 6312(d); Colon-Plaza, 136 A.3d at
526 & n.7. The offense of criminal use of a communication facility requires
proof that the defendant knowingly, intentionally, or recklessly committed or
facilitated a felony by use of a communication facility. 18 Pa.C.S. § 7512(a);
Commonwealth v. Moss,
852 A.2d 374, 382 (Pa. Super. 2004). A home
computer with internet connection is a “communication facility.” 18 Pa.C.S. §
7512(c); Commonwealth v. Crabill,
926 A.2d 488, 493 (Pa. Super. 2007).
Appellant claims that the Commonwealth failed to prove the element of
knowledge, that Appellant knew that he had child pornography on one of his
computers and knew that he was transmitting child pornography from his
computer network. We do not agree.
The evidence at trial showed that child pornography was transmitted
through an IP address that belonged to Appellant, that over 30 child
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pornography files, many of which had names referencing children and sex
acts, were on a computer storage device owned by Appellant in a folder
labeled with Appellant’s name and a network name assigned by Appellant to
a computer that had belonged to him. N.T. Trial at 86-92, 95-96, 99-102,
104, 165-82, 184-88, 313-15; Commonwealth Exs. 7-8, 10, 14, 16. The
evidence also showed that Appellant was the sole resident of the house to
which the IP address was assigned and where computer storage device in
question was found, and that the MEGABIZ-V3 computer backup in which child
pornography was found contained documents that were Appellant’s. N.T.
Trial at 100-02, 135-39, 197-99, 316.
This is sufficient to prove that Appellant knew that he was possessing
and transmitting child pornography. Sauers, 159 A.3d at 4, 11-12 (evidence
that police downloaded child pornography from a computer with defendant’s
IP address and username and that examination of defendant’s computer
showed use of program to download and share child pornography was
sufficient to show knowing possession and dissemination); Colon-Plaza,
136
A.3d at 524, 526-29 (evidence that police downloaded child pornography from
defendant’s computer through file sharing program and that child
pornography was found on defendant’s computer under his username was
sufficient to show knowing possession and criminal use of communications
facility even though another person also lived in defendant’s apartment);
Commonwealth v. Koehler,
914 A.2d 427, 431-32, 437 (Pa. Super. 2006)
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(evidence that police found child pornography on computer in defendant’s
bedroom that had a screen name, systems properties name, and software
registration name that referred to defendant’s name was sufficient to show
knowing possession despite absence of direct evidence that defendant
accessed the files at issue and defendant’s claim that others in house could
have accessed the computer). Although Appellant denied knowledge of the
child pornography and introduced evidence that a third party could have
accessed his computer network, the jury was not required to believe Appellant
and his witnesses or believe that the child pornography was put on Appellant’s
computer network or disseminated by such an unknown third party.
In his fourth issue, Appellant argues that the police officers executing
the search warrant violated his rights under the Pennsylvania Rules of Criminal
Procedure and the Pennsylvania Constitution by entering his home without
announcing their purpose and that the trial court therefore erred in denying
his motion to suppress the NAS that they seized and evidence derived from it.
Our standard and scope of review of the denial of a motion to suppress
evidence is well established:
Appellate review of a suppression decision is limited to the
suppression record, considering the evidence presented by the
Commonwealth as the prevailing party and any uncontradicted
evidence presented by the defense. This Court is bound by the
facts as found by the suppression court so long as they are
supported by the record, but our review of its legal conclusions is
de novo.
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Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018) (citations
omitted).
Pennsylvania Rule of Criminal Procedure 207 and Article I, Section 8 of
the Pennsylvania Constitution require that police, before entering a dwelling
to execute a search warrant, announce their identity, purpose and authority
and give the occupant a reasonable period of time after such announcement
to let them in, unless exigent circumstances require immediate forcible entry.
Pa.R.Crim.P. 207; Commonwealth v. Crompton, 682 A.2d 286, 288, 290
(Pa. 1996); Commonwealth v. Frederick,
124 A.3d 748, 754-56 (Pa. Super.
2015). The purposes of this requirement, known as the “knock and announce
rule,” are to prevent resistance by an occupant protecting his dwelling, to
prevent violence and physical injury to the police and occupants, to protect an
occupant’s privacy expectation against the unauthorized entry, and to prevent
property damage resulting from forced entry. Commonwealth v. Carlton,
701 A.2d 143, 146 (Pa. 1997); Crompton,
682 A.2d at 288; Commonwealth
v. Frederick,
124 A.3d at 755.
The knock and announce rule is not limited to entry that involves
breaking down a door or damage to the dwelling; it applies to any entry into
a dwelling without the occupant’s permission, including entry through an
unlocked door. Crompton, 682 A.2d at 287, 290 (suppressing evidence
where police entered house through unlocked screen door without complying
with knock and announce rule); Frederick,
124 A.3d at 752-53, 754 n.8, 756-
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57 (suppressing evidence where police opened door simply by pushing on it
without damaging it and did not announce who they were or their purpose
until after door was open); Commonwealth v. Douventzidis, 679 A.2d 795,
796, 798-800 (Pa. Super. 1996) (suppressing evidence where front door was
partially open and police entered by opening a screen door without complying
with knock and announce rule).
Moreover, even where police knock and clearly announce their identity
as police, failure to announce their purpose before entering the premises
violates Rule 207 and Article I, Section 8 of the Pennsylvania Constitution and
suppression is required unless exigent circumstances for the failure to
announce are shown. Carlton, 701 A.2d at 147-49; Commonwealth v.
Wagstaff,
911 A.2d 533, 537-38 (Pa. Super. 2006); Douventzidis,
679 A.2d
at 798-800.
[T]here is no requirement that anyone open the door to their
dwelling in the absence of police statement of their authority and
purpose. In a free society, the mere presence of police does not
require an individual to throw open the doors to his house and
cower submissively before the uniformed authority of the state. …
[I]n the absence of exigent circumstances, forcible entry without
announcement of purpose violates Article 1, Section 8 of the
Constitution of Pennsylvania, which prohibits unreasonable
searches and seizures.
Carlton, 701 A.2d at 147-48.
The burden is on the Commonwealth to prove that the police fully
complied with the knock and announce rule or to prove one of the following
four exigent circumstances: 1) that the occupants fail to respond after
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repeated knocking and announcing; 2) that the police are virtually certain that
the occupants already know their purpose; 3) that the police have reason to
believe that an announcement prior to entry would imperil their safety; or 4)
that the police have reason to believe that evidence is about to be destroyed.
Carlton, 701 A.2d at 147; Crompton,
682 A.2d at 288; Frederick,
124 A.3d
at 755, 757. If the Commonwealth does not satisfy that burden, the evidence
seized in the noncompliant search must be suppressed, even though a valid
warrant for the search existed. Carlton,
701 A.2d at 147-49; Crompton,
682 A.2d at 290; Frederick,
124 A.3d at 755-57. “Even a valid warrant may
not be executed in an unreasonable manner.” Carlton,
701 A.2d at 147
(quoting Commonwealth v. McDonnell,
516 A.2d 329 (Pa. 1986)).
Here, the trial court found that the police who came to execute the
search warrant knocked on Appellant’s door and that an officer opened
Appellant’s unlocked, closed door and entered Appellant’s house with his gun
drawn after he knew that Appellant was responding to their knock. Trial Court
Opinion, 9/17/18, at 5. These findings are supported by the record. N.T.
Suppression Hearing, 7/20/18, at 11-12, 14, 16-17; Defendant’s Suppression
Hearing Ex. A, Video 4. The trial court found that the police announced their
presence, but did not find that they announced their purpose or that they
waited a significant length of time for Appellant to let them in before entering.
Trial Court Opinion, 9/17/18, at 5; Trial Court Opinion, 1/8/19, at 3.
Moreover, any finding that the police announced their purpose or waited a
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reasonable period of time before entering would be unsupported by and
directly contrary to the record. The uncontradicted evidence from the
suppression hearings shows that the police did not announce their purpose at
any time before entering Appellant’s house and that an officer opened
Appellant’s door and came inside the house with his gun drawn within a few
seconds after he knew that Appellant was responding. N.T. Suppression
Hearing, 7/20/18, at 11-14, 16-18, 23-24; Defendant’s Suppression Hearing
Ex. A, Video 4. The record is therefore clear that the police did not comply
with the requirement that they knock and announce before entry. Carlton,
701 A.2d at 147-48 (failure announce purpose is violation); Commonwealth
v. Means,
614 A.2d 220, 223 (1992) (absent proof of exigent circumstances,
5 to 10 second wait after announcing purpose is not a reasonable length of
time to allow occupant to respond).
The trial court ruled that the entry did not violate Appellant’s rights on
the ground that immediate entry was necessary for officer safety. Trial Court
Opinion, 9/17/18, at 5-6; Trial Court Opinion, 1/8/19, at 3.3 The record,
however, cannot support this legal conclusion.
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3 The trial court did not find that any of the other three exigent circumstances
that excuse compliance with the knock and announce rule applied here.
Moreover, there is no support in the record for any of those exceptions. The
police admitted that there was no failure to respond by Appellant after they
knocked on his door. N.T. Suppression Hearing, 7/20/18, at 11-12, 14, 16.
There was no testimony by any of the officers that they believed that
immediate entry without announcement was necessary to prevent destruction
(Footnote Continued Next Page)
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At the first suppression hearing, Appellant and Lieutenant Jones
testified. Appellant testified that when the police arrived to execute the
warrant, he noticed that there were people standing outside his door, but did
not hear any announcement of who they were and did not know who they
were. N.T. Suppression Hearing, 1/29/18, at 20, 22-23, 25-26. Appellant
testified that he put a finger up to signal for them to wait because he wanted
to put on clothes before opening the door and that he went out of view of the
door to put on clothes, but that before he could finish dressing, police officers
had come in and were holding him at gunpoint. Id. at 22-24, 26-28.
Lieutenant Jones testified that he thought that one of the Murrysville officers
knocked on the door and did not remember whether anything was said before
entering the house. Id. at 33-34. He testified that he thought that Appellant
came to the door before the officers went in, but admitted that he did not
have a specific recollection of what happened. Id. at 35-39.
At the second suppression hearing, the recordings from Appellant’s
security system were introduced in evidence and the two Murrysville police
officers, Officer Lepovsky and Officer Sadlowe, testified. Officer Lepovsky
____________________________________________
of evidence. While, as discussed below, Appellant knew that the people at the
door were police officers after they opened the door but before they entered,
there was no basis for any claim or finding that the officers were virtually
certain that Appellant knew why they were there. The transmission of child
pornography on which the search warrant was based occurred over three
months before the search occurred.
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testified that he knocked “about two times” on the door and then almost
immediately saw Appellant inside about 10 or 12 feet away facing the door.
N.T. Suppression Hearing, 7/20/18, at 11, 16. Officer Lepovsky testified that
he saw Appellant hold up a finger “as if to motion, like, wait” and then turn
and walk out of view of the door. Id. at 11-12. Officer Lepovsky testified
that this caused him to enter the house because he was concerned when
Appellant went out of view that Appellant could be going for a weapon and
that he entered the house with his gun drawn and directed Appellant to come
back to the doorway. Id. at 12-14, 17. Officer Lepovsky testified that he did
not know whether he ever verbally identified himself and the other officers as
police or announced that they were there to serve a search warrant before he
entered the house. Id. at 17-18. Officer Sadlowe testified that Officer
Lepovsky knocked on the door and that after knocking, Officer Lepovsky
indicated that there was someone in the house. Id. at 20. Officer Sadlowe
testified that Officer Lepovsky entered the house only seconds after he said
there was someone inside and that he followed Officer Lepovsky into the
house, but did not draw his gun. Id. at 20-21, 23-24. Officer Sadlowe
testified that he could not recall whether Officer Lepovsky made any
announcement of identity or purpose before entering. Id. at 24.
One of the six security camera recordings that were introduced in
evidence, Video 4, was from a camera inside the house that shows the door
through which the police entered with the kitchen area of house in the
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foreground and contains both video and audio of the police entry and the
events leading up to it. This recording shows that the top part of the door has
a window, but nothing is visible through it on the video because of sun glare,
so it is not possible to tell where the officers were positioned or whether
Appellant could see that police were at the door. The video shows Appellant
walking in the kitchen area on the left side of the screen toward a short
entranceway that leads to the door, putting up his first finger to indicate to
whoever is at the door to wait, and then turning around and walking back out
of view of the door to where he had been. Defendant’s Suppression Hearing
Ex. A, Video 4. One second later, one of the officers opens the door. Id. The
officer is in uniform and clearly visible to someone looking from inside the
house toward the door and stands in the doorway. Id. Appellant walks back
to where he can be seen from and see the doorway and again holds up his
first finger. Id. Appellant then walks back out of view of the door again, and
the officer within two seconds enters the house with his gun drawn. Id. The
officer then confronts Appellant in the kitchen, directs Appellant to come to
the door of the house, and brings him to the doorway. Id. Appellant was
apparently putting pants on when he was out of view of the officers as this
video shows him pulling something up on himself and that he has sweatpants
on when he goes with the officer to the door and another of the recordings
shows that he was wearing boxer shorts when he first went to answer the
door. Defendant’s Suppression Hearing Ex. A, Video 4, Video 3.
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The audio of Video 4 shows that the police did not verbally identify
themselves as police and did not state that they were there to enforce a
warrant before opening the door and entering Appellant’s house. There is no
verbal communication by Appellant or the police on the audio until after
Appellant first signals to the door with his finger and walks away. When the
police officer opens the door, he does not identify himself as police or state
any reason why he is there, but says only “Hey, buddy, you all right?,” to
which Appellant responds “Yeah, I’m good” and begins to return to where he
can see and be seen from the doorway. Defendant’s Suppression Hearing Ex.
A, Video 4. The officer says “Hey, come here, come out here and talk to me,”
and Appellant, who is now in sight of the doorway and can see that the person
in the doorway is a uniformed police officer, responds “Hold on a second” while
putting up his finger the second time. Id. The officer says “OK, all right,”
and then immediately enters the house with his gun drawn after Appellant
walks away. Id. The first time any of the officers mentions a warrant is after
the officer entered with his gun drawn, when the officer has brought Appellant
back to the doorway. Id.
The sole basis for the trial court’s conclusion that there was a danger to
officer safety was Officer Lepovsky’s testimony that he immediately entered
because he was concerned that Appellant could be going for a weapon and
that when “the person disappears that’s an immediate safety concern.” N.T.
Suppression Hearing, 7/20/18, at 12, 17. However, exigent circumstances
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concerning officer safety exist only where there is a reasonable basis for the
police to believe that announcing their identity and purpose would endanger
their safety and subjective good faith of the officers is not sufficient to excuse
noncompliance with the knock and announce rule. Frederick, 124 A.3d at
155-56.
It is clear, in light of the video and audio evidence, that there was not
a reasonable basis for not announcing the officers’ purpose before Officer
Lepovsky entered Appellant’s house with his gun drawn. The video shows no
furtive or evasive movements by Appellant; it shows him walking in view of
the doorway and out of view at a normal walking speed with no unusual
motions or gestures indicating any hostility or resistance. No evidence was
introduced that the police had any information about Appellant that suggested
that he was armed or violent. The crime that the police were investigating,
while serious, involved use of computers, not weapons of any sort.
There was also no reason that the officer could not have announced his
purpose, rather than saying “Hey, buddy, you all right?,” when Appellant
walked away the first time. No officer testified that announcing that they were
there to execute a search warrant created any danger to their safety.
Moreover, to the extent that the mere fact of moving out of view created a
safety concern, there is no evidence that there was any reason why the officer
could not have told Appellant that he had a search warrant and directed him
to come out without further delay before the officer entered the house, rather
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than asking Appellant to come to the door without stating any reason for his
authority and saying “OK, all right” in response to Appellant’s request that he
wait briefly. There was also no reason for the officers to believe that making
such an announcement and stating that Appellant had to come to the door
immediately would have been futile. Appellant had already once come back
into view in response to the officer’s request and he walked away again only
after asking the officer to briefly wait and being told “OK, all right” by the
officer.
The trial court’s only other justification for not suppressing the evidence
was that the police did not damage property in making their entrance. Trial
Court Opinion, 1/8/19, at 3. That rationale, however, is not legally valid. As
discussed above, the fact that police enter a house through an unlocked door
and no physical harm occurs does not negate a knock and announce violation
and is not a ground for denying suppression. Crompton, 682 A.2d at 287,
290; Frederick,
124 A.3d at 752-53, 754 n.8, 756-57; Douventzidis,
679
A.2d at 796, 798-800.
Commonwealth v. Kane, 940 A.2d 483 (Pa. Super. 2007), relied on
by the trial court and the Commonwealth, does not support the denial of
Appellant’s suppression motion. In Kane, there was no issue of whether a
claim of danger to the police was reasonable.
Id. at 490. Rather, this Court
held that there was no violation of the knock and announce rule because the
police had repeatedly announced their identity and purpose both before
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entering the adjoining building and inside the adjoining building and that, as
a result, any person inside the building in question was necessarily aware that
police were seeking entry to execute a search warrant before the police
opened the door between the buildings. Id. at 491-92. Kane therefore has
no applicability here, where the police never announced their purpose before
an officer entered Appellant’s house with his gun drawn.
Because the record establishes that the police did not announce their
purpose before they entered Appellant’s house and the Commonwealth did
not prove that the police had any reason to believe that announcement of
their purpose prior to entry would imperil their safety, the search of
Appellant’s house violated Appellant’s rights under Article I, Section 8 of the
Pennsylvania Constitution. The trial court’s denial of Appellant’s motion to
suppress the NAS and other items seized from his house in that search and
evidence derived from the NAS was therefore error. “[T]he remedy for
noncompliance with the knock and announce rule is always suppression.”
Crompton, 682 A.2d at 290; Frederick,
124 A.3d at 755 (quoting
Crompton) (emphasis omitted).
At Appellant’s trial, the NAS, screenshots and documents downloaded
from it, and testimony concerning what was found on it were introduced in
evidence. See, e.g., N.T. Trial at 165-82, 184-88; Commonwealth Exs. 4-24.
This improperly admitted evidence played a central role in Appellant’s trial.
Not only was this evidence used by the Commonwealth to prove the
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possession of child pornography charges against Appellant, it was also used
by the Commonwealth to support its contention that the dissemination of child
pornography by Appellant’s wireless router was knowing and not the result of
a third party’s access to his wireless network. N.T. Trial at 506-09, 511-18,
522. Appellant is therefore entitled to a new trial on all of the charges against
him. Accordingly, we reverse the order denying suppression, vacate all of
Appellant’s convictions and sentence, and remand for a new trial at which no
evidence derived from the search and seizure shall be admitted.
Judgment of sentence vacated. Case remanded with instructions to
grant Appellant’s motion to suppress and for new trial. Jurisdiction
relinquished.
Judge Murray joins the opinion.
Judge Sullivan files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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