Com. v. Rini, K. ( 2023 )

J-A02039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KELVIN RINI :
:
Appellant : No. 340 WDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0000768-2021
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: FEBRUARY 28, 2023
Kelvin Rini (Appellant) appeals from the judgment of sentence imposed
after the trial court convicted him of one count of possession of a controlled
substance and two counts of possession with intent to deliver a controlled
substance (PWID).1 We affirm.
Relevant to this appeal, the trial court explained:
Detective Nathan Dettling is a City of Pittsburgh police officer
working out of the Zone 5 police zone, [and] on October the 28th,
2020, he was at the Zone 5 station in the morning hours observing
the area [] around Frankstown and North Homewood Avenues.
[Police were conducting] video surveillance … to observe possible
open-air [drug] sales, and they were doing focused deterrence
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 35 P.S. § 780-113(a)(16), (30).
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and drug investigations to deal with what had been an ongoing
problem. [Detective Dettling] testified that his supervisor and
sergeant had received a number of community complaints
regarding the open-air sales, and in addition, there had been some
shootings and crimes of violence in that area. During the course
of this focused deterrence, he was operating and in control of the
city camera system. One of the cameras was focused at that area
of Frankstown and North Homewood Avenue.
Shortly after 9:30 a.m. on October 28th, 2020, Detective
Dettling from the Zone 5 station observed an individual later
identified as Michael Smith approach an individual he later
identified as [Appellant] …. He testified that he observed Smith
hand [Appellant] cash and then retrieve what the detective
observed to be a single stamp bag containing heroin and/or
fentanyl, that … he saw this on the camera, and in fact, the
Commonwealth introduced Commonwealth’s Exhibit 1, which was
the video footage of the incident that ran from approximately 9:32
a.m. to 9:33 a.m. and 50 seconds.
The [suppression court] … observed there to be an individual
standing on the street wearing all dark clothing that Detective
Dettling identified as being [Appellant]. The [suppression court]
was able to observe, although it was difficult to see the currency
transaction from the individual identified as Michael Smith to the
person identified as [Appellant], you could clearly see on
Commonwealth’s Exhibit 1 … the person that Detective Dettling
identified as [Appellant] reach into a sweatshirt area and pull out
what appeared to be a single stamp bag.
The detective testified based on his experience that he
knows what [a stamp bag] looks like, [it] appeared to be a white
glassine packet, that he’s seen over 1,000 hand-to-hand
transactions. He believed it to contain fentanyl or heroin when
packaged, and he knows that fentanyl and heroin when packaged
has the appearance that looked like what was contained on
Commonwealth’s Exhibit 1. He also testified that the mannerisms
of the two individuals, including the individual he identified as
[Appellant], were consistent with individuals who were
exchanging drugs for money ….
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The [c]ourt also heard from Detective Francis Niemiec. He
testified he’s a City of Pittsburgh police officer who was also
trained as was Detective Dettling in areas surrounding narcotics
enforcement, including surveillance and how hand-to-hand
transactions occur. [On the date of Appellant’s arrest, Detective
Niemiec] was also working, although he was not at the Zone 5
station[;] he was out in the area of Frankstown and North
Homewood [Avenue,] working on the focused deterrence detail.
Based on information that he was provided by Detective Dettling,
he approached the individual who was later identified as
[Appellant] … wearing what he described as a gray tossle cap,
gray hoodie, gray sweatpants[; Detective Niemiec] testified that
it was approximately two minutes from the time [police] received
the description to the time that they were able to detain
[Appellant].
At that time, they approached [Appellant], detained
him in handcuffs and then searched him. There were heroin
and fentanyl stamp bags recovered [from Appellant,] along with
United States currency, and at that time they placed [Appellant]
under arrest.
Trial Court Opinion, 7/6/22, 4-6 (quoting Suppression Court Findings and
Conclusions, 7/23/21, at 1-2) (emphasis added).
The trial court further explained:
On October 28, 2020, Appellant was charged with the above
offenses and an additional count of Possession of Marijuana, 35
[P.S.] § 780-113(a)(31). On June 28, 2021, Appellant filed a
Motion to Suppress which is the subject of the appeal. On July
23, 2021, an evidentiary hearing was held whereafter the
[suppression c]ourt denied the motion. After a bench trial on
October 8, 2021, Appellant was found not guilty of Possession of
Marijuana and guilty of the remaining three offenses. A
sentencing hearing was held on January 6, 2022, at which time
the court imposed a sentence of 1½ to 3 years of incarceration at
Count 1 — PWID. Count 3, Possession merged with Count 1, and
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no further penalty was imposed at Count 2. Appellant filed a
timely Post Sentence Motion on January 7, 2022 seeking
modification of his sentence, which was denied on February 7,
2022.
Trial Court Opinion, 7/6/22, at 1-2. Appellant timely appealed, and filed a
court-ordered Pa.R.A.P. 1925(b) statement.
Appellant presents the following issue:
Did the trial court err in denying [Appellant’s] suppression motion
because the police functionally arrested him without probable
cause?
Appellant’s Brief at 4 (capitalization modified).
Our standard of review is well-settled:
When we review the ruling of a suppression court, we must
determine whether the factual findings are supported by the
record. When it is a defendant who appealed, we must consider
only the evidence of the prosecution and so much of the evidence
for the defense as, fairly read in the context of the record as a
whole, remains uncontradicted. Assuming that there is support in
the record, we are bound by the facts as are found and we may
reverse the suppression court only if the legal conclusions drawn
from those facts are in error.
Commonwealth v. Brame, 239 A.3d 1119, 1126 (Pa. Super. 2020) (citation
omitted). “As an appellate court, we are not bound by the suppression court’s
conclusions of law; rather, when reviewing questions of law, our standard of
review is de novo and our scope of review is plenary.” Id. (citation omitted).
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We recognize “the Fourth Amendment to the United States Constitution
[protects] people from unreasonable searches and seizures.” In the Interest
of A.A., 195 A.3d 896, 903 (Pa. 2018) (citation omitted).
Our Fourth Amendment jurisprudence has developed three
categories of interaction between private citizens and the
police. [A] mere encounter does not require any level of suspicion
or carry any official compulsion to stop or respond[, while] an
investigative detention permits the temporary detention of an
individual if supported by reasonable suspicion[, and] an arrest
or custodial detention … must be supported by probable cause.
Id. at 903-04 (quotation marks and citations omitted).
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
arrest, and of which he has reasonably trustworthy information,
are sufficient to warrant a [person] of reasonable caution in the
belief that the suspect has committed or is committing a crime.
The question we ask is not whether the officer’s belief was correct
or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply a totality of
the circumstances test.
Commonwealth v. Williams, 2 A.3d 611, 616 (Pa. Super. 2010) (en banc)
(citations, quotation marks and emphasis omitted).
Appellant claims his custodial detention was not supported by the
requisite probable cause. Appellant’s Brief at 11. Appellant argues Detective
Niemiec lacked probable cause to believe Appellant engaged in criminal
activity. Id. According to Appellant, Detective Dettling had generally
described the individual selling the heroin as an “African American male
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wearing a gray tossle cap, gray sweatpants, [and] either a black or dark brown
jacket over top of … a gray hoodie.” Id. at 12. Appellant asserts:
Critically, however, Detective Dettling’s broadcast did not include
the individual’s age, height, weight, facial hair, or any other
defining characteristics. In other words, he simply offered a vague
and generic description of the individual wearing fairly common
articles of clothing.
Id. Appellant acknowledges that Detective Niemiec and his partner seized
Appellant two minutes after the drug deal. Id. at 13. However, Appellant
asserts the suspect no longer was visible on Detective Dettling’s camera
during the two-minute lapse. Id.
Appellant compares this case to the circumstances found to lack
probable cause in Commonwealth v. Anderson, 520 A.2d 1184 (Pa. Super.
1987), and In the Interest of A.P., 617 A.2d 764 (Pa. Super. 1992) (en
banc). Appellant’s Brief at 15. According to Appellant:
Both cases had matches to descriptions of race, gender, and
clothing, with [the defendant in Anderson] matching the
description of a black male wearing a blue sweatshirt that zipped
up the front and had a red stripe down the sleeve, and [Appellant]
matching the description of a black male with a grey tossle cap,
grey sweatpants, black or brown jacket, and grey hoodie. [The
defendant in Anderson] was not acting suspiciously nor tried to
flee police when he was arrested, and neither was [Appellant].
Id. at 15-16. Appellant points out that the defendant in Anderson matched
additional criteria: dark complexion, aged 18-20, close cropped hair, and
taller than 5’8” or 5’9”. Id. at 16. Appellant claims that here, because the
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general description did not establish probable cause for officers to believe
Appellant sold the heroin, the drugs and evidence recovered during his
custodial detention and search should have been suppressed as “fruit of the
poisonous tree.” Id. at 11, 16-17.
Pertinently, this Court has explained:
When an arrest is based on a description, the description must be
specific. See Commonwealth v. Jackson, 459 Pa. 669, 331
A.2d 189, 191 (Pa. 1975). In Jackson, the police dispatcher
notified officers that “two [African American] males in dark
clothing, 5’6” to 5’8” in height, with medium builds, medium to
dark complexions and semi-bush haircuts” had shot a man.
[Jackson,] 331 A.2d at 190. An hour later, an officer noted an
elderly man giving money to a man matching the physical
description of the suspects but wearing different clothing. See
id. The officer approached the two and asked if anything was
wrong. See id. Despite the fact that the elderly man responded
in the negative, the officer arrested the appellant based on his
similarity to the description. See id. Our Supreme Court held
that the officer lacked probable cause to arrest the appellant
because of the time lapse between the murder and the arrest, as
well as the generality of the description. See 331 A.2d at
191. This was further demonstrated by the fact that
various officers arrested fifteen to twenty people that night
matching the description. See 331 A.2d at 190 n.3.
A general description, however, does not always negate
probable cause. In Commonwealth v. Chase, 394 Pa. Super.
168, 575 A.2d 574, 576 (Pa. Super. 1990), a police officer told his
partner that he “had just purchased narcotics from a black man in
a blue shirt at a particular street corner.” The second officer went
to the street corner, saw a man matching the suspect’s
description, and arrested him. See id. The Court
distinguished Jackson based on the fact that the police saw the
suspect matching the description at the crime scene immediately
after the crime. See, 575 A.2d at 577. Consequently, the Court
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held that the officer had probable cause to arrest
appellant. See 575 A.2d at 579. Thus, where the description
of the suspect is a general one, an officer has probable
cause to arrest a suspect where the suspect is “the only
individual[] who matched the description and [is] found at
the same location within a relatively short period of
time.” Commonwealth v. Toro, 432 Pa. Super. 383, 638 A.2d
991, 1004 (Pa. Super. 1994).
Commonwealth v. Burton, 770 A.2d 771, 783 (Pa. Super. 2001) (emphasis
in original).
We conclude that Appellant’s reliance on Anderson and A.P. is
misplaced. In Anderson, the complainant observed a man prying open the
second-floor window of his home. Anderson, 520 A.2d at 1185. After the
complainant notified authorities, police issued a bulletin describing “a black
male, dark complexion, blue sweatshirt, about eighteen to twenty years old
with close cropped hair.” Id. at 1185-86. The complainant thereafter
supplemented the description with the subject’s height of 5’8” to 5’9”, and
added that the subject wore a sweatshirt zipped in front with a red stripe on
the arms. Id. at 1186. Two hours after the attempted break-in, police
detained the defendant two blocks from the scene. Id. This Court concluded
police lacked probable cause to effect a warrantless arrest. We stated:
Here, [the defendant] matched the general description provided
by the complainant. He did stand over 5’9” tall and wore a blue
sweatshirt with a zipper up the front and red stripes down the
sleeves. He was observed standing on a street corner two blocks
away from the scene of the crime over two hours after it had
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occurred. There is, however, no evidence that appellant was
acting suspiciously or that he tried to flee or evade the police.
Unlike those cases … where we have found facts sufficient to
establish probable cause, the only basis for such a determination
in this case was [the defendant’s] similarity to the general
description provided by the victim. We hold that this similarity,
taken by itself, was not enough to provide the police with
sufficient facts establishing probable cause to arrest.
Anderson, 520 A.2d at 1187 (citations omitted, emphasis added).
In A.P., during the investigation of a homicide, an officer “had been
given a description of the perpetrator which described a male ‘approximately
five foot eight inches (5’8”) [tall], light skinned, possibly [H]ispanic with a full
face.” A.P., 617 A.2d at 768. An officer observed the defendant, who
matched the description, five days later at the address of the homicide. Id.Upon handcuffing and searching the defendant, the officer discovered 64 vials
of crack cocaine. Id. This Court concluded the officer lacked probable cause
to effect a custodial detention of the defendant. We stated:
The officer’s justification for the arrest was that the [defendant]
met the general description of the person under suspicion, and
that [he] was present at the same address where the homicide
occurred five days earlier. We do not find that the presence of
a[] Hispanic male in a predominantly black neighborhood, taken
together with the other information known by the police officer, is
sufficient to support a finding of probable cause to arrest.
Id. at 154 (emphasis added).
Here, by contrast, Detective Dettling testified at the suppression hearing
that while conducting surveillance,
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I observed a male, later identified as Michael Smith, approach
[Appellant]. After a brief verbal exchange, Mr. Smith handed
[Appellant] U.S. currency in the form of paper cash. [Appellant]
accepted the cash and retrieved a single stamp bag of heroin from
his right hoodie pocket and then delivered it to Mr. Smith. He
handed it to Mr. Smith.
N.T., 7/7/22, at 8. Detective Dettling further testified:
[D]uring these operations we have constant communication with
whoever is involved. We use our city-issued handheld radios. I
made everybody involved in the operation aware of my
observations, and the responding officers moved in to detain
[Appellant] and Mr. Smith.
Id. at 10.
According to Detective Dettling, he has witnessed over 1,000 hand-to-
hand drug transactions in his career. Id. at 13. Detective Dettling also stated
that the transaction occurred in a high-crime area, which he described as “an
open-air drug market.” Id. at 17. Detective Dettling testified the item
Appellant handed to Mr. Smith was readily identifiable as a stamp bag of
heroin. Id. at 14. The detective admitted he lost sight of Appellant for “a
minute or two maybe, a few minutes” following the transaction. Id. at 18.
However, Detective Dettling also testified that he broadcast his descriptions
of Appellant and Mr. Smith to the units “staged nearby to maneuver their
vehicles and detain both males.” Id.
Further, Detective Niemiec testified:
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Myself and other detectives from the narcotics unit were in the
Homewood area of Zone 5 assisting Zone 5 plainclothes detectives
with a focused deterrence crime suppression operation in the area
of the intersection of Frankstown and North Homewood Avenue.
…
Around that time I was in a vehicle with my partner, Detective
Brian Burgunder …. He and myself were staged in the general
area of the 800 block of Frankstown Avenue near North
Homewood. We were listening to radio transmissions from
Detective Nathan Dettling, who was conducting surveillance of the
area via the city’s camera network, and we were just instructed
to detain individuals that Detective Dettling had observed
conducting drug transactions in the area.
….
We saw [Appellant] a minute or so after receiving the
description, and it was maybe another 30 seconds to a minute
before myself and Detective Burgunder made contact with
[Appellant], so two minutes at the most from the time we initially
received the description and the directions from Detective Dettling
until the time we were out with [Appellant].
N.T., 7/7/22, at 23-24.
On cross-examination, Detective Niemiec testified he was around the
corner from the transaction, approximately a block or two away. Id. at 27.
When asked whether he was identifying Appellant solely on the description
provided by Detective Dettling, Detective Niemiec stated: “Yes, that and
Detective Dettling directing us to him … [h]is current location.” Id. at
27 (emphasis added).
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Detective Niemiec had a description of Appellant’s clothing and location,
and observed Appellant in the immediate vicinity one minute after receiving
the description. Under the totality of the circumstances, Detective Niemiec
had probable cause to effect a custodial detention of Appellant. Chase, 575A.2d at 576; Burton, 770 A.2d at 783. Thus, Appellant’s issue does not merit
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2023
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