Superior court upholds evidence suppression ruling

Drug charges likely to be dropped against Roaring Spring man

A decision by the Pennsylvania Superior Court likely means that drug charges brought two years ago against a Roaring Spring man will be dismissed, but the same man was arrested earlier this year and is facing new charges, according to Blair County District Attorney Pete Weeks.

Records at the Blair County Prison indicate that Andrew David Berkheimer, 38, was placed in the Blair County Prison on Feb. 25 after a search of his Roaring Spring residence revealed a large amount of fentanyl as well as methamphetamine.

He is awaiting arraignment in the Blair County Court on three counts of possession with intent to deliver in addition to four counts of the illegal possession of a controlled substance.

The new charges stemmed from a Feb. 24 search by police.

But while Berkheimer remains in prison awaiting disposition of the 2023 charges, the Superior Court has issued an opinion that most likely will result in the dismissal of charges brought against him in May 2021.

Those charges followed a search of his home that came about when a neighbor called the Roaring Spring Police Department to investigate what appeared to be a break-in at his Roaring Spring home.

The neighbor noticed that a door of Berkheimer's home was ajar and that a window had been broken. She also saw a needle in Berkheimer's yard.

She called the police department, rather than the 911 emergency number, to report the incident, a decision that would become a factor in the Superior Court opinion issued Thursday.

Roaring Spring police Lt. Travis Clowson learned of the resident's call through a voicemail message left on the department's answering machine.

He went to the home where he noticed a storm door leading to the cellar was "off to the side" and a window in the door was broken.

Clowson testified during a hearing that he observed copper piping and wires at the bottom of the steps leading to the cellar.

He believed someone might have been attempting to steal the items, pointing out that a year prior, there had been someone in Berkheimer's home "stealing things."

After calling for backup, he went from the basement to the first floor of the home where he observed psilocybin mushrooms.

When the officers entered the living area of the home, they announced "Roaring Spring police."

Upon receiving no answer, the officers searched the bedroom area and the attic.

According to the Superior Court opinion, "The officers did not find anyone in the house or any evidence that someone had broken into the home and tried to escape."

At that point, the police secured the home and sought a search warrant.

During the ensuing search, they found a small amount of heroin and drug paraphernalia.

Berkheimer was charged with possession with intent to deliver, possession of a controlled substance and 11 counts of possession of drug paraphernalia.

Berkheimer's Altoona attorney, Joel Seelye, filed a motion to suppress the evidence due to an illegal search.

Blair County Judge Wade A. Kagarise granted suppression, which means the evidence seized during the search cannot be used against Berkheimer.

But the prosecution appealed the Kagarise decision to the Superior Court.

Kagarise, in suppressing the evidence, found that police did not find any evidence "to suggest that any individual was unlawfully at the residence at that time."

He stated there was no evidence "of a fleeing felon or that a suspect would escape if not swiftly apprehended prior to a warrant being obtained."

Police, the judge observed, made no attempt to contact Berkheimer, who allegedly was out of the area at the time.

And he found that while it is not uncommon for residents of Roaring Spring to contact police directly as opposed to calling 911, "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 (an emergency)," Kagarise concluded.

The prosecution argued in its appeal that the warrantless search of the Berkheimer home was legal and it disagreed that a concerned citizen calling police directly means the call is less serious than if she had called 911.

The Superior Court panel that included Judges John T. Bender, Anne E. Lazarus and Maria McLaughlin upheld Kagarise's suppression order.

The prosecution contended the officers in answering the neighbor's call had the right to enter the home and conduct a "protective sweep," noting a door was ajar and a glass window was broken.

Also police, it was argued, upon entering the home and seeing drugs and drug paraphernalia "in plain view" had the power to seize those items even without a search warrant.

The Superior Court panel ruled that there was no evidence indicating that a person was unlawfully present at the house and therefore a warrantless entry into the residence was not justified.

"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 Superior Court ruled.

The appeals court went on to explain that police were not entitled to seize drug-related items "in plain view" because their search of the home was "illegal."

As to the conclusion that a direct call to the police department, as opposed to 911, by the neighbor demonstrated there was no real emergency that would justify a police intrusion into the house, the appeals court stated, "This issue is without merit."

"It was just one of many factors that the court considered in support of its grant of suppression," according to the Superior Court panel.

Weeks said his office probably won't seek review of the Superior Court decision by the Supreme Court.

"We understand it is difficult to overturn a (trial) judge's decision," Weeks said.

But he also continued to disagree strongly that a direct call to a police department was of lesser importance than had the call gone to 911.

Weeks explained the Berkheimer case brought two years ago would likely be dismissed because the evidence against him has been suppressed.

State Court records indicate that a further action on Berkheimer's 2023 case was continued by Blair County President Judge Elizabeth A. Doyle on May 2.