Com. v. Dix, M. , 207 A.3d 383 ( 2019 )

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2019 Pa. Super. 102COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW DIX :
:
Appellant : No. 2157 EDA 2017
Appeal from the Judgment of Sentence January 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001841-2016
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY McLAUGHLIN, J.: FILED APRIL 1, 2019
Matthew Dix appeals from the judgment of sentence entered following
his bench-trial convictions for possession of a controlled substance with intent
to deliver (“PWID”) and possessing instruments of crime (“PIC”).1 Dix
challenges the denial of his suppression motion and the sufficiency of the
evidence. We affirm.
Dix was arrested on February 2, 2016, following a police stop outside
his vehicle, where the police recovered a hatchet from Dix’s waistband and
crack cocaine from the floor near the vehicle’s driver seat. Dix filed a motion
to suppress the hatchet and crack cocaine, arguing the police officers detained
him without probable cause and lacked reasonable suspicion to stop him.
The trial court held a hearing on the motion to suppress. At the hearing,
Police Officer Marvin Ruley and Sergeant Dennis Johnson testified as follows.
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1 35 P.S. § 780-113(a)(3) and 18 Pa.C.S.A. § 907(a).
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On February 2, 2016, Officer Ruley and Sergeant Johnson were on patrol in
plain clothes and in an unmarked police car near the 5100 block of
Westminster Avenue in Philadelphia, which is a high crime area. N.T.,
10/28/16, at 7, 13-14, 23. While stopped at a red light, the police officers saw
Dix park his truck, exit the truck, and reach toward the floor of the truck,
under the driver’s seat. Id. at 8, 23-24. Dix then lifted his shirt and placed a
large object into the front part of his waistband. Id. at 8, 24. He closed the
car door and proceeded toward a corner store. Id. at 8, 24.
The police officers believed that Dix had just placed a firearm in his
waistband and therefore parked their car and walked toward Dix. Id. at 8, 24.
Dix saw the officers, turned, walked back to his truck, and opened the door.
Id. at 8, 24. Sergeant Johnson approached the driver’s side of the truck and
Officer Ruley approached the passenger side, where a second man was sitting.
Id. at 8, 24. The officers observed Dix reach down toward the floor of the
truck, as though placing items underneath the driver’s seat. Id. at 8, 17, 26.
Sergeant Johnson drew his gun, told Dix to place his hands on the truck, and
frisked Dix’s waistband area, where he discovered a hatchet. Id. at 9, 25.
Officer Ruley walked to the passenger side of the truck and “probably”
had his gun drawn. Id. at 9, 17. From his position on the sidewalk, Officer
Ruley was able to see a clear plastic bag filled with what he recognized as
narcotics. Id. at 9; N.T., 12/5/16, at 7, 11. The bag was on the floor of the
truck in front of the driver’s seat. Id. It was later determined that the bag
contained 55 packets of crack cocaine. N.T., 10/28/16, at 9.
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The trial court denied the motion,2 stating:
It’s a unique move when an officer sees someone on the
street side from behind. And they were quite clear about
that. You know, what they saw was that they saw this
defendant pulling up his shirt and looked like he was
secreting something in his waistband. And observing that,
they had an obligation as officers to stop and investigate
because of the area, as a high-crime, high-drug area. We all
know it goes hand and hand with drugs and weapons.
So they approached the vehicle, albeit with their weapons
out because they think he’s – giving the motion toward the
store and his observation. One of the officers testified he
saw him in back; the other did not. And he goes back and
he starts in for the truck.
Looking at this picture, you may think it’s hard, as a lay
person to look at that packet and to recognize what it is, but
an officer with 20 years[’] experience and all these years of
narcotics, clearly, can identify what and how drugs are
packaged, more readily to their knowledge than to you or I.
So given the fact that they see this movement, which gives
them legitimate belief that this defendant is armed and
dangerous and approach the vehicle, the one officer is
handling the defendant with the frisk for a weapon as the
other approached him on an angle. As he said, on an angle,
where he’s standing above the vehicle, now looking in, his
recognition of the packaged narcotics seem to be
reasonable.
For all those reasons, I think the officers followed the law.
The motion to suppress is denied.
N.T., 12/5/16, at 25-26.
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2 The trial court described the interaction as a car stop. We conclude, however,
that this was not a car stop, as the police officers stopped Dix due to his
actions while outside of his vehicle.
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Dix proceeded to a bench trial. The Commonwealth admitted all non-
hearsay testimony from the motion to suppress. In addition, Officer Ruley
testified that the vehicle’s passenger was using his telephone, and did not look
in the officer’s direction “until [the officer] got to the door.” Id. at 35. Prior to
observing the drugs on the floor, Officer Ruley did not see the passenger make
any movements. Id. at 37, 40.
Dix and the Commonwealth entered the following stipulations: (1)
whoever possessed the narcotics did so with the intent to deliver the narcotics,
id. at 41; and (2) the passenger has two convictions for PWID, one from 2009
and one from 2015, and that he had been sentenced on the 2015 PWID
conviction on December 29, 2015. id. at 43.
The trial court found Dix guilty of PWID and PIC. The trial court
sentenced Dix to two to four years’ incarceration and two years’ probation for
the PWID conviction, and imposed no further penalty for the PIC conviction.
Dix filed post-sentence motions, which the trial court denied. Dix then filed a
timely notice of appeal.
Dix raises the following issues on appeal:
(1) Did the trial court err in denying the suppression motion
where the officers had neither probable cause nor
reasonable suspicion when they drew their weapons on []
Dix?
(2) Did the trial court err in finding the evidence sufficient
to convict [] Dix of the possession charges where there was
reasonable doubt as to his constructive possession of a bag
found in a truck next to another person who had recently
been convicted of [PWID]?
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(3) Did the court err in finding the evidence sufficient to
convict [] Dix of [PIC] where the Commonwealth did not
present a case at trial for that charge?
Dix’s Br. at 3.
Dix first argues the trial court erred in denying his motion to suppress.
He argues that a full custodial detention occurred when the police officers
approached Dix with their guns drawn and forced him to place his hands on
the roof of his truck. He argues the custodial detention was illegal because the
police officers lacked probable cause. He further argues that even if the stop
was an investigative detention, the police officers lacked reasonable suspicion
to conduct the stop, claiming that they did not have specific and articulable
facts that Dix was engaged in criminal activity or that he was armed and
dangerous. He maintains that his presence in a high crime area and retreat
from officers, and that the officers observed Dix put an unidentified object in
his waistband, did not provide reasonable suspicion of ongoing criminal
activity.
Our standard of review on appeal of the denial of a motion to suppress
is limited to determining “whether the record supports the suppression court’s
factual findings and the legitimacy of the inferences and legal conclusions
drawn from those findings.” Commonwealth v. Griffin, 24 A.3d 1037, 1041
(Pa.Super. 2011) (quoting Commonwealth v. Lohr, 715 A.2d 459, 461
(Pa.Super. 1998)). If the record supports the factual findings of the trial court,
we reverse “only if there is an error in the legal conclusions drawn from those
factual findings.” Id. (citation omitted).
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“The law recognizes three distinct levels of interaction between police
officers and citizens: (1) a mere encounter; (2) an investigative detention,
often described as a Terry[3] stop . . . ; and (3) a custodial detention.”
Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa.Super. 2017).
“A mere encounter can be any formal or informal interaction between
an officer and a citizen. The hallmark of this interaction is that it carries no
official compulsion to stop or respond.” Id. (quoting Commonwealth v.
DeHart, 745 A.2d 633, 636 (Pa.Super. 2000). A mere encounter does not
need to be justified by any level of police suspicion. Id.
“[A]n ‘investigative detention’ . . . carries an official compulsion to stop
and respond.” Id. (quoting DeHart, 745 A.2d at 636). Because an
investigative detention “has elements of official compulsion it requires
reasonable suspicion of unlawful activity.” Id. (quoting DeHart, 745 A.2d at
636). In addition, although “reasonable suspicion of unlawful activity is
sufficient to justify a forcible stop, it does not necessarily justify a frisk for
weapons.” Id. Rather, a weapons frisk is appropriate, “[o]nly when the officer
reasonably believes the suspect may be armed and dangerous.” Id.
“[A] custodial detention occurs when the nature, duration and conditions
of an investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.” Id. (quoting DeHart, 745
A.2d at 636). A custodial detention “requires that the police have probable
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3 Terry v. Ohio, 392 U.S. 1 (1968).
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cause to believe that the person so detained has committed or is committing
a crime.” Id.
The officers’ drawing their guns when they stopped Dix did not render
the stop a custodial detention. In Commonwealth v. Johnson, 849 A.2d
1236, 1237 (Pa.Super. 2004), the police received a tip from a confidential
informant that a “young, stocky, African-American male would be delivering
marijuana” to a specific car at a specific location and that the delivery would
occur between 6:00 p.m. and 10:00 p.m. When the officers observed a man
fitting the description arrive at the location, they approached the car with their
“guns drawn but at their sides.” Id. We concluded that this was an
investigative detention, not a custodial detention. Id. at 1238. We also found
that the police had reasonable suspicion that criminal activity was afoot, as a
man fitting the confidential informant’s description arrived at the described
location in a car similar to that described by the confidential informant. Id.
We further concluded the investigative detention “was not made improper
because the officers drew their guns.” Id. We noted the officers did not point
the guns at the defendant, and noted that “[o]ur law enforcement officers are
not required to take any more risks than those already inherent in stopping a
drug suspect, particularly one in an automobile.” Id. at 1239.
The cases cited by Dix to support his claim that the stop was a custodial
detention because the officers drew their guns are distinguishable. For
example, in Commonwealth v. White, 669 A.2d 896, 897, 901 (Pa. 1995),
the Pennsylvania Supreme Court concluded that the defendant was under
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arrest before the police officers searched his car, where the police officers had
search warrants for defendant’s person and residence, but not his vehicle, and
where six to eight officers converged on the defendant’s car and took him into
custody. The Court noted that “[h]ad he attempted to leave, it seems likely
that he would have been looking down the barrel of several guns.” Id. at 901.
Unlike in White, only two officers approached Dix with their guns drawn. It
cannot be said that the officers “converged” on him, or that he was “looking
down the barrel of several guns.”
Further, in Commonwealth v. Albert, we observed that the “display
of a weapon by an officer is an example of coercive police conduct.” 767 A.2d
549, 552 (Pa.Super. 2001). However, we held that when the officer in that
case approached the defendant, with his gun drawn, and yelled for the
defendant to stop, an investigatory detention, not a custodial detention,
occurred. Id.
Here, the officers approached Dix with their guns drawn. Nonetheless,
the totality of the circumstances do not render the detention the functional
equivalent of an arrest. The officers stopped the defendant and conducted a
very brief pat-down search. The stop constituted an investigative detention.
Johnson, 849 A.2d at 1237-39; Albert, 767 A.2d at 552.
Because we conclude that this was an investigative detention, we must
next determine whether the trial court erred in concluding the police officers
had reasonable suspicion that Dix was engaging in criminal activity to support
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the stop, and reasonable suspicion that Dix was armed to support the frisk.
See Mackey, 177 A.3d at 227.
The trial court concluded the officers had an obligation to investigate
when they observed Dix, in a high-crime and high-drug area, secreting a large
item in his waistband. We agree.
Based on the facts of this encounter, the police officers had reasonable
suspicion for both the stop and the weapon search. First, the stop was
supported by reasonable suspicion. The police officers observed Dix exit a car
in a high crime area, reach toward the floor of the car, place a large item in
his waistband, and proceed toward a corner store. When Dix observed the
officers, rather than continuing to the corner store, Dix immediately retreated
to the car and again made motions as though placing an item on the floor of
the truck. Such observations provided reasonable suspicion that Dix was in
possession of contraband and supported an investigatory detention. See
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa.Super. 2014) (finding
reasonable suspicion of criminal activity and that defendant was armed and
potentially dangerous where, at 2:00 a.m. in a high crime area, police officers
found defendant and another person standing over an unconscious man and
officer noticed an object weighing down defendant’s jacket pocket).
Further, the police officers reasonably believed that the large item
placed in Dix’s waistband was a weapon, which provided reasonable suspicion
to support a frisk of Dix’s person. Commonwealth v. Foglia, 979 A.2d 357,
361 (Pa.Super. 2009) (en banc) (protective search supported by reasonable
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suspicion where police received anonymous tip that a man dressed in black
had weapon, police observed a man dressed in black engage in evasive
behavior by looking back at police and walking away and touch his waist area,
where the officers knew people often conceal weapons).4 We therefore
conclude the trial court did not err in denying Dix’s motion to suppress.
Dix next challenges the sufficiency of the evidence supporting his PWID
and PIC convictions.
When reviewing a sufficiency of the evidence claim, we must determine
whether, when viewed in the light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
beyond a reasonable doubt. See Commonwealth v. Brown, 23 A.3d 544,
559 (Pa.Super. 2011) (en banc). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence.” Id. (quoting Commonwealth v.
Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008)).
Dix maintains the Commonwealth failed to establish constructive
possession, arguing his passenger possessed the narcotics. He claims there
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4 On appeal, Dix challenges the legality of the stop and the search of his
person. As to the discovery of the narcotics, he argues that the drugs are
inadmissible because the seizure was not proper. Dix’s Br. at 7. He does not
challenge the finding that the drugs were found in plain view and, therefore,
does not argue the drugs were inadmissible even if the stop was improper.
Dix’s Br. at 7.
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was no evidence Dix had control over the area in which the drugs were found
and his passenger had recently been convicted of PWID.
To sustain a conviction for possession of a controlled substance with
intent to deliver, the Commonwealth must establish the defendant knowingly
or intentionally possessed a controlled substance without being properly
registered to do so, with the intent to manufacture, distribute, or deliver it.
See 35 P.S. § 780–113(a)(30); Commonwealth v. Brown, 48 A.3d 426,
430 (Pa.Super. 2012).
Because Dix was not in physical possession of the narcotics, the
Commonwealth was required to establish Dix had constructive possession.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013). To
establish constructive possession of contraband, the Commonwealth must
show that the defendant has “conscious dominion” over the contraband, that
is, “the power to control the contraband and the intent to exercise that
control.” Brown, 48 A.3d at 430 (quoting Commonwealth v. Parker, 847
A.2d 745, 750 (Pa.Super. 2004)). The “intent to maintain a conscious
dominion may be inferred from the totality of the circumstances,” and
“constructive possession may be found in one or more actors where the item
in issue is in an area of joint control and equal access.” Commonwealth v.
Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (citations and brackets omitted).
Here, Dix drove the vehicle in which the narcotics were recovered.
Further, the police officers observed Dix retrieve something from under the
driver’s seat before exiting the vehicle and again saw him attempt to hide
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something under the driver’s seat when he returned to the vehicle. The police
officer recovered the narcotics from the floor in front of the driver’s seat. This
evidence is sufficient to support a finding Dix constructively possessed, that
is, had conscious dominion over, the narcotics. See Hopkins, 67 A.3d at 821
(finding sufficient evidence that defendant constructively possessed drugs,
even though co-defendant claimed possession, where defendant drove his car
toward a known drug user and, when police approached, police officer
observed defendant attempt to hide drugs in the space between driver’s seat
and center console, and found defendant with two cell phones and $361 in
cash on his person); Commonwealth v. Thompson, 779 A.2d 1195, 1199-
1200 (Pa.Super. 2001) (finding sufficient evidence of constructive possession
where drugs found in crack of back seat of car and another passenger testified
she observed defendant moving his hands from his pockets toward crack in
back seat during traffic stop).
Dix next maintains the Commonwealth failed to establish the conviction
for PIC because it did not prove that Dix intended to employ the hatchet for
criminal purposes.
To establish a conviction for PIC, the Commonwealth must establish the
defendant possessed “any instrument of crime with intent to employ it
criminally.” 18 Pa.C.S.A. § 907(a). “[I]ntent can generally be inferred from
the surrounding circumstances.” In re A.C., 763 A.2d 889, 891 (Pa.Super.
2000). Intent to employ a weapon criminally “cannot be inferred from mere
possession of the weapon.” Id.
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Here, Dix was found with a hatchet in his waistband and was found to
possess narcotics that he intended to illegally deliver to others. Further, when
he first exited the vehicle, the police observed him take a large item from the
same spot in which they later discovered the narcotics, and place it in his
waistband. This evidence supports a finding that Dix possessed the hatchet
with the intent to employ it criminally. Commonwealth v. Weston, 749 A.2d
458, 462 (Pa. 2000) (finding sufficient evidence of intent to employ firearm
illegally where defendant armed himself with gun before confronting victim).
Judgment of sentence affirmed.
Judge Stabile joins the opinion.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/19
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