Com. v. Harris, L. ( 2016 )

J-S50042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LERON FRANK HARRIS
Appellant No. 1451 MDA 2015
Appeal from the Judgment of Sentence June 26, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004713-2014
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 08, 2016
Appellant, Leron Frank Harris, appeals from the June 26, 2015
aggregate judgment of sentence of two to five years’ imprisonment, imposed
after Appellant was found guilty of one count each of possession with intent
to deliver (PWID), intentional possession of a controlled substance, and
possession of drug paraphernalia.1 After careful review, we affirm.
The trial court summarized the relevant factual history of this case as
follows.
At the hearing held on Appellant’s Suppression
Motion, the Commonwealth presented the testimony
of Dauphin County Probation Officer Sean Hamor
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32),
respectively.
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(“PO Hamor”) and Harrisburg City Police Officer
Nicholas Ishman (“Ofc. Ishman”). At or about 7:53
p.m. on the evening of August 16, 2014, the Officers
were partnered on routine patrol as part of the
Dauphin County Street Crimes Unit (“SCU”). The
SCU is a team of law enforcement officers consisting
of police, county probation officers and state parole
officers who patrol high crime areas and address any
violent crimes or drug transactions that they
encounter.
While on patrol, Ofc. Ishman and PO Hamor
were driving in an unmarked police van on Woodbine
Street in Harrisburg when they spotted Appellant
standing with another mate, later identified as David
Bucci, in Wharton Alley. When they turned the
corner onto Wharton Alley, Ofc. Ishman, who was
familiar with Appellant, saw money in his left hand
and observed him put something down the front of
his pants. Although he was not Appellant’s
supervising Probation Officer, PO Hamor was familiar
with Appellant as he had seen him report to PO
Anglemeyer. Ofc. Ishman reported to PO Hamor
what he had seen so, the two decided to make
contact with Appellant.
Ofc. Ishman and PO Hamor turned onto
Wharton Alley without emergency lights or sirens
activated. Upon exiting the police vehicle, Appellant
walked up to Ofc. Ishman greeted him and shook his
hand. [Ofc.] Ishman testified that he did not
indicate to Appellant that he wanted to speak to him
or that Appellant was not free to leave the scene.
Ofc. Ishman then walked over to Mr. Bucci who was
standing by his truck that was parked in the alley.
PO Hamor then exited the car to make a
routine probation contact with Appellant. Appellant’s
demeanor was nervous and shaky. PO Hamor gave
him a pen and paper to write down his name and
probation officer’s name and he continued to shake
while performing the task. PO Hamor never told
Appellant that he was not free to leave; rather, he
asked for consent to search his person which consent
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was granted. Approximately $200 in cash and a
cellphone were found during the search. While
searching him, PO Hamor shook Appellant’s shorts
which caused a rubber band to fall out which was
spotted by Ofc. Ishman who was now standing about
5 feet away. Once he was alerted to the rubber
band, PO Hamor asked Appellant if he had any
contraband on him to which he replied no. PO
Hamor followed up with a request for consent to
search down his pants; Appellant agreed and
unbuckled his belt. PO Hamor pulled the waistband
away from Appellant’s stomach and immediately saw
a bag of suspected crack cocaine on top of his
private parts. Appellant reacted by repeatedly
saying “I’m done, I’m done.” The substance found in
Appellant’s pants field tested positive as crack
cocaine.
On August 16, 2014, around 6:00 p.m., David
Bucci … called Appellant, a person he knew as
“Ralph”, to make arrangements to buy $20 worth of
crack cocaine. Mr. Bucci had been in contact with
Appellant numerous times prior to August 16, 2014,
to purchase illegal drugs. He indicated that the
usual practice was for him to call Appellant to see if
he had cocaine available and, if so, meet on Wharton
Street. On the date of the incident, the pair was to
meet at approximately 7:00 p.m. on Wharton Street
off Woodbine Street. Appellant instructed Bucci to
call him when he arrived at the meeting spot so he
could come out of his apartment building and
consummate the drug transaction.
Bucci drove to the meeting location with his
fiancée who waited in his truck. After notifying
Appellant by phone that he had arrived, Appellant
met with Bucci on the sidewalk outside of the
apartment building on Wharton Alley. While making
the exchange, Bucci and Appellant saw a police
vehicle turn down the alley which caused them to go
separate ways – Appellant towards his apartment
building and Bucci to his truck.
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After exiting the police vehicle, Ofc. Ishman
approached Bucci and asked why he was there.
Bucci lied at first about the reason for being at the
location; however, he eventually admitted that he
was there to buy drugs. Upon request, Bucci
granted Ofc. Ishman permission to search his person
but, according to Bucci, since he admitted to the
reason for meeting with Appellant, the search never
occurred. At trial, Bucci identified Appellant as the
person named “Ralph” from whom he would
purchase crack cocaine.
Ofc. Ishman’s and PO Hamor’s testimony was
essentially the same as the testimony provided
during the suppression hearing with further
amplification of some details relating to the
encounter with Appellant and Bucci. When Ofc.
Ishman first spotted Bucci and Appellant, they were
standing at the rear of the apartment building on
Wharton Alley. He stated that the two men
immediately stopped speaking and Appellant shoved
something down his pants. After shaking Appellant’s
hand, he told Ofc. Ishman that the men were talking
about a job. Ofc. lshman then proceeded to speak
with Bucci. Initially Bucci told Ishman that the pair
had been talking about tattoos for his fiancée but,
eventually he admitted that he was there for a
cocaine purchase. After Bucci consented to a search
of his person, Ofc. Ishman found no contraband.
PO Hamor was informed by Ofc. Ishman that
he had seen Appellant shove something down his
pants. PO Hamor made contact with Appellant after
lshman began speaking with Mr. Bucci. At trial, PO
Hamor reiterated the details of his encounter with
Appellant up to the point of the consensual search of
his pants where the bag of suspected crack cocaine
was found.
Ofc. Ishman took custody of the bag and field
tested the substance. The substance recovered from
Appellant field tested positive as cocaine. Ishman
searched Appellant incident to the arrest after finding
the baggie and recovered a cellphone and $205 in
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the form of two $100 bills and a $5 bill. Ofc. Ishman
got permission to use Mr. Bucci’s cellphone to call
the contact number listed as Ralph. Upon placing
the call from Bucci’s phone, Appellant’s cellphone
rang.
Ofc. Ishman submitted the recovered
substance to the Pennsylvania State Police (“PSP”)
Forensic Lab for testing. The parties stipulated to
the admission of the PSP lab report into evidence.
The report indicated that the substance recovered
from Appellant was crack cocaine that weighed 5.76
grams.
The Commonwealth also presented the expert
testimony of Chief John Goshert (“Chief Goshert”) of
the Dauphin County Criminal Investigation Division
(“CID”). After testifying to his training, experience
and background, Chief Goshert was qualified as an
expert in street level drug trafficking without
objection.
Chief Goshert testified that he had reviewed
the police report and the evidence related to this
case. Chief Goshert was given a hypothetical upon
which to determine whether he was able to form an
opinion regarding whether the cocaine recovered in
this matter was for personal use or for distribution.
After considering the hypothetical factual scenario
and reviewing the PSP lab report, Chief Goshert
opined that the drugs recovered in this case were
possessed with the intent to sell or deliver to another
person.
Chief Goshert testified to the many factors
which led him to his opinion which included his
experience with significant drug trafficking at that
location; the fact that the secreted area of the
location eased the facilitation of a drug transaction;
and, the actions of the two men were synonymous
with persons engaging in a drug transaction. Chief
Goshert found the significant amount of cocaine
recovered along with the fact that a device by which
a person may smoke the crack cocaine was not
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found and packaging in which it was found are
inconsistent with personal use. An additional factor
considered was the presence of a significant amount
of cash given Appellant’s lack of employment.
Trial Court Opinion, 1/12/16, at 3-8.
Appellant filed a motion to suppress on December 23, 2014, for which
the trial court conducted a hearing on January 26, 2015. After post-hearing
briefing, the trial court entered an order on February 27, 2015, denying
Appellant’s motion to suppress.
Appellant proceeded to a jury trial on June 3, 2015, at the conclusion
of which, the jury found Appellant guilty of intentional possession and drug
paraphernalia counts, but deadlocked on PWID. Appellant proceeded to a
second jury trial on June 11, 2015, limited to the one count of PWID, at the
conclusion of which, the jury found Appellant guilty of that offense. On June
26, 2015, the trial court imposed an aggregate sentence of two to five years’
imprisonment.2 That same day, Appellant filed a timely post-sentence
motion, which the trial court denied on August 10, 2015. On August 24,
2015, Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following four issues for our review.
____________________________________________
2
Specifically, the trial court sentenced Appellant to two to five years’
imprisonment for PWID, a concurrent six months’ probation for possession of
drug paraphernalia, and no further penalty on intentional possession.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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I. Whether the trial court erred in denying
Appellant’s motion to suppress evidence where
the police and probation officer lacked
reasonable suspicion to conduct an
investigative detention[,] in violation of Article
I, Section 8 of the Pennsylvania Constitution
and the Fourth Amendment to the United
States Constitution?
II. Whether the trial court erred in denying
Appellant’s motion to suppress evidence where
the police and probation officer lacked
reasonable suspicion to conduct a probation
search, in violation of Article I, Section 8 of the
Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution?
III. Whether the trial court erred in denying
Appellant’s post-sentence motion where the
verdict was against the weight of the evidence
so as to shock one’s sense of justice where the
Commonwealth never showed that [] Appellant
engaged in acts which constitute the offense of
which he was convicted?
IV. Whether the Commonwealth failed to present
sufficient evidence to sustain Appellant’s
convictions where the Commonwealth did not
prove that Appellant possessed the drugs with
the intent to deliver them?
Appellant’s Brief at 8-9 (some capitalization omitted).
We elect to address Appellant’s issues in reverse order for ease of
appellate review and analysis. See generally Commonwealth v. Stokes,
38 A.3d 846, 853 (Pa. Super. 2011) (stating, “a successful sufficiency of the
evidence claim warrants discharge on the pertinent crime, [therefore,] we
address those claims first[]”). In his fourth issue, Appellant avers that the
Commonwealth failed to provide sufficient evidence of PWID, specifically that
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he possessed the drugs in question with the intent to deliver. Appellant’s
Brief at 36-38. The Commonwealth counters that through Bucci and Chief
Goshert, their testimony was sufficient to establish the “intent to deliver”
element of the offense. Commonwealth’s Brief at 31-32.
We begin by noting our well-settled standard of review. “In reviewing
the sufficiency of the evidence, we consider whether the evidence presented
at trial, and all reasonable inferences drawn therefrom, viewed in a light
most favorable to the Commonwealth as the verdict winner, support the
jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson,
91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.
Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its
burden by wholly circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Commonwealth v. Watley, 81
A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and
citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate
court, we must review “the entire record … and all evidence actually
received[.]” Id. (internal quotation marks and citation omitted). “[T]he
trier of fact while passing upon the credibility of witnesses and the weight of
the evidence produced is free to believe all, part or none of the evidence.”
Id. (citation omitted). “Because evidentiary sufficiency is a question of law,
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our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation
omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
In this case, the offense at issue is PWID, the statute governing said
offense provides in relevant part, as follows.
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
…
(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner
not registered or licensed by the appropriate State
board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit
controlled substance.
…
35 P.S. § 780-113(a)(30). Regarding the intent to deliver element, this
Court has explained that the jury may infer said intent from the following
circumstances.
“To establish the offense of possession of a
controlled substance with intent to deliver, the
Commonwealth must prove beyond a reasonable
doubt that the defendant possessed a controlled
substance with the intent to deliver it.”
[Commonwealth v. Kirkland, 831 A.2d 607, 611
(Pa. Super. 2003), appeal denied, 847 A.2d 1280
(Pa. 2004)] (citing Commonwealth v. Conaway,
791 A.2d 359 (Pa. Super. 2002); Commonwealth
v. Aguado, 760 A.2d 1181 (Pa. Super. 2000)).
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The trier of fact may infer that the defendant
intended to deliver a controlled substance from
an examination of the facts and circumstances
surrounding the case. Factors to consider in
determining whether the drugs were possessed
with the intent to deliver include the particular
method of packaging, the form of the drug,
and the behavior of the defendant.
Kirkland, supra at 611. “Thus, possession with
intent to deliver can be inferred from the quantity of
the drugs possessed and other surrounding
circumstances, such as lack of paraphernalia for
consumption.” Commonwealth v. Torres, 617
A.2d 812, 814 (Pa. Super. 1992), appeal denied, 629
A.2d 1379 (Pa. 1993).
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (parallel
citations omitted).
In this case, the Commonwealth presented the testimony of Bucci,
who testified that he “basically [] bought [his] drugs from [Appellant].”
N.T., 6/11/15, at 25. Bucci described Appellant’s manner of conducting
business in the following terms.
Q. When you would purchase these drugs, did you
have any routine for getting them?
A. Yes.
Q. Can you please describe that to the members
of the jury?
A. Basically I would call, I would ask if [Appellant]
was good. He would [say] yes or no. If the
answer was yes, I would -- we would proceed
to make a time on how long it was going to
take me to get there. I would get there, at
which point I would call him again, and then he
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would come out and the transaction would be
made.
Q. Now, you just stated that you would call
[Appellant] and ask him if he was good. Can
you please describe to the members of the jury
what that means?
A. Basically did he have drugs on him. Cocaine.
Q. Would you always meet in the same location?
A. Yes.
Id. at 25-26. Bucci further testified that on the night of August 16, 2014,
he intended to purchase $20.00 worth of crack cocaine, and was in the
middle of making that transaction with Appellant when the police interrupted
them. Id. at 26, 28.
The Commonwealth also presented the testimony of Chief Goshert,
who testified as an expert in the field of “street-level drug trafficking.” Id.
at 63. Chief Goshert testified that in his expert opinion, the 5.76 grams of
crack cocaine recovered from Appellant’s person was possessed with the
intent to deliver and not for personal use. Id. at 66. Chief Goshert stated
that several factors led him to this conclusion. This included that the area
where Appellant and Bucci were found was “an area that is known for drug
trafficking.” Id. at 67. Also, Chief Goshert stated that the street value of
the 5.76 grams of crack cocaine was “about 450 to 570 dollars [sic] worth”
and it was “not an amount that would be consistent with someone who is
using crack cocaine.” Id. at 67-68. Chief Goshert also noted that Appellant
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and Bucci’s behavior of being “in the alley like that huddled up would be
consistent with a drug transaction, with transactional behavior.” Id. at 69.
Chief Goshert also noted that Appellant was not found with any drug
paraphernalia on his person, and that the packaging in which the crack
cocaine was found in was consistent with the sale of the substance, as
opposed to being for personal use. Id. at 72.
In light of the above evidence, we conclude Appellant is not entitled to
relief. The Commonwealth’s evidence showed that Appellant possessed 5.76
grams of crack cocaine, worth at least $450.00, and regularly sold the same
to Bucci. As Chief Goshert explained, the location and behavior of Bucci and
Appellant, combined with the value of the crack cocaine found, were all
consistent with an intent to deliver. Furthermore, it is undisputed that at the
time the police encountered Appellant, he did not possess any drug
paraphernalia on his person, which would have indicated that the drugs were
for personal consumption. Although, Appellant highlights factors that were
not present, these do not detract from the fact that Chief Goshert and
Bucci’s testimony presented facts from which a jury could conclude that
Appellant possessed the crack cocaine with an intent to deliver. See, e.g.,
Kirkland, supra; Torres, supra. Based on these considerations, we
conclude the Commonwealth produced sufficient evidence of intent to
sustain the PWID conviction. See Diamond, supra; Jones, supra.
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In his third issue, Appellant avers that the jury’s verdict was against
the weight of the evidence.4 We begin by noting our well-settled standard of
review. “A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court.” Commonwealth v.
Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation omitted). An
argument that the jury’s verdict was against the weight of the evidence
concedes that the evidence was sufficient to sustain the convictions.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our Supreme Court has
admonished that “[a] new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013) (citation omitted). Instead, “the trial judge is to determine
that notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all the facts is
to deny justice.” Id. (internal quotation marks and citation omitted). “[A]
new trial should be awarded when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice ….” Id.
As an appellate court, it “is not [our role] to consider the underlying
question of whether the verdict is against the weight of the evidence.”
____________________________________________
4
We reject the trial court and the Commonwealth’s position that Appellant
has waived this issue for want of specificity.
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Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted),
cert. denied, Morales v. Pennsylvania, 135 S. Ct. 1548 (2015). An
argument that the jury’s verdict was against the weight of the evidence
remains “[o]ne of the least assailable reasons for granting … a new trial ….”
Id. (citation omitted). “Thus, only where the facts and inferences disclose a
palpable abuse of discretion will the denial of a motion for a new trial based
on the weight of the evidence be upset on appeal.” Id. (citation omitted;
emphasis in original).
In this case, Appellant avers the jury’s verdict was against the weight
of the evidence because, in his view, Bucci and Chief Goshert’s testimony
was unreliable. Appellant argues that Bucci’s testimony was unreliable
because of his crimen falsi, pending charges, and his admission that he lied
to the police. Appellant’s Brief at 40. Appellant also assails Bucci’s
testimony for its purported inconsistency with the evidence. Appellant
maintains that although Bucci stated that he purchased the $20.00 worth of
crack cocaine from Appellant, Bucci was not found with any drugs on him,
nor was Appellant found with any “denominations [of currency] … that would
account for twenty ($20) dollars.” Id. at 41. Appellant also avers that Chief
Goshert’s conclusions were unreliable because he testified that he did not
know whether Appellant had drug paraphernalia in his home 50 feet from
where he met Bucci. Id. Appellant also notes that Chief Goshert agreed
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that buying crack cocaine in a bulkier quantity was “safer and that the drugs
would not go bad so one could keep them for a long period of time.” Id.
The trial court concluded that Appellant was not entitled to relief based
on two propositions. First, it concluded the record contained “an abundance
of evidence [that] was presented to prove an intent to deliver the crack
cocaine.” Trial Court Opinion, 1/12/16, at 18. Second, the trial court’s
“[r]eview of the transcript does not reveal such [an] amount of
inconsistencies or a lack of credibility that it would shock the [trial c]ourt’s
sense of justice to learn that the jury resolved any credibility issues in favor
of the Commonwealth.” Id.
It is axiomatic that the jury is the ultimate finder of fact at trial.
[T]he veracity of a particular witness is a
question which must be answered in reliance on the
ordinary experiences of life, common knowledge of
the natural tendencies of human nature, and
observations of the character and demeanor of the
witness. As the phenomenon of lying is within the
ordinary capacity of jurors to assess, the question of
a witness’s credibility is reserved exclusively for the
jury.
Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).
Likewise, “[t]he trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all, part or none
of the evidence.” Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.
Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).
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In this case, as the trial court pointed out, the jury was free to find
Bucci and Chief Goshert’s trial testimony credible, and resolve any
inconsistencies in said testimony in the Commonwealth’s favor. See
generally Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014)
(concluding the weight of the evidence claim could not prevail as “the jury
resolved the inconsistencies among the testimonies as it saw fit and reached
a verdict[]”), appeal denied, 102 A.3d 984 (Pa. 2014). The jury weighed
their testimony and ultimately concluded that Bucci and Chief Goshert were
credible. As an appellate court, we will not reweigh the evidence and
substitute our judgment for that of the fact-finder. Commonwealth v.
Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on
these considerations, we conclude the trial court did not commit a palpable
abuse of discretion in deciding the jury’s verdict was not against the weight
of the evidence. See Morales, supra.
We address Appellant’s remaining two issues together, in which
Appellant argues the trial court erred when it denied his motion to suppress.
We begin by noting our well-settled standard of review.
In addressing a challenge to a trial court’s
denial of a suppression motion, we are limited to
determining whether the factual findings are
supported by the record and whether the legal
conclusions drawn from those facts are correct.
Since the Commonwealth prevailed in the
suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense as it remains
uncontradicted when read in the context of the
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record as a whole. Where the record supports the
factual findings of the trial court, we are bound by
those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014).5 In his first
issue, Appellant argues the police lacked reasonable suspicion to conduct an
investigative detention of Appellant. Appellant’s Brief at 19. The
Commonwealth counters that the interaction was a mere encounter, but
even if it was an investigative detention, the police had reasonable
suspicion. Commonwealth’s Brief at 14, 20.
The Fourth Amendment of the Federal
Constitution provides, “[t]he right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures, shall not be violated ….”
U.S. Const. amend. IV. Likewise, Article I,
Section 8 of the Pennsylvania Constitution
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5
Our Supreme Court has clarified our scope of review when considering a
challenge to a trial court’s suppression ruling as it relates to “the extent of
the record that the appellate court consults when conducting that review.”
In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). The Court held that such review
is limited to the suppression hearing record, and “it is inappropriate to
consider trial evidence as a matter of course, because it is simply not part of
the suppression record, absent a finding that such evidence was unavailable
during the suppression hearing.” Id. at 1085. Because prior cases held that
a reviewing court could consider the trial record in addition to the
suppression record, our Supreme Court determined that the more limited
scope announced in In re L.J. would apply prospectively to cases where the
suppression hearing occurred after October 30, 2013. Id. at 1088-1089.
Instantly, the subject suppression hearing was held on January 26, 2015.
Accordingly, our scope of review is confined to the suppression hearing
record.
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states, “[t]he people shall be secure in their
persons, houses, papers and possessions from
unreasonable searches and seizures ….” Pa.
Const. Art. I, § 8.
Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
Super. 2014) (en banc), appeal denied, 117 A.3d
295 (Pa. 2015).
Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our
cases have recognized three levels of police-citizen interactions.
The first is a mere encounter, which requires no level
of suspicion at all. Commonwealth v. Daniel, 999
A.2d 590, 596 (Pa. Super. 2010). The second level
is an investigative detention, which must be
supported by reasonable suspicion. Id. at 596-597.
Finally, the third level is an arrest or custodial
detention, which must be supported by probable
cause. Id. at 597.
Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012). “In
evaluating the level of interaction, courts conduct an objective examination
of the totality of the surrounding circumstances.” Commonwealth v.
Lyles, 97 A.3d 298, 302 (Pa. 2014) (citation omitted).
The totality-of-the-circumstances test is ultimately
centered on whether the suspect has in some way
been restrained by physical force or show of coercive
authority. Under this test, no single factor controls
the ultimate conclusion as to whether a seizure
occurred—to guide the inquiry, the United States
Supreme Court and this Court have employed an
objective test entailing a determination of whether a
reasonable person would have felt free to leave or
otherwise terminate the encounter. What constitutes
a restraint on liberty prompting a person to conclude
that he is not free to leave will vary, not only with
the particular police conduct at issue, but also with
the setting in which the conduct occurs.
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Id. at 302-303.
In the case sub judice, the Commonwealth presented the testimony of
Officer Ishman, who testified that he was patrolling in an unmarked car with
P.O. Hamor. N.T., 1/26/15, at 16-17. Officer Ishman testified that at about
7:53 p.m., he and P.O. Hamor were driving by Wharton Alley, when he saw
Appellant. Id. at 17, 18. Officer Ishman observed that Appellant had
money in his left hand, and he was speaking to Bucci. Id. at 18. Officer
Ishman also observed Appellant “put something down the front of his pants.”
Id. at 19. Officer Ishman knew Appellant and identified him to P.O. Hamor.
The two officers got out of the car, which had neither its lights or sirens
activated. Id. at 19. As Officer Ishman got out of the car, Appellant walked
over to him. Id. Officer Ishman shook his hand, asked him how he was
doing that evening. Id. Appellant responded he was fine and had been
speaking to Bucci “about doing some work.” Id. Officer Ishman then turned
and went to speak to Bucci. Id. at 19-20.
P.O. Hamor testified at the suppression hearing that after Officer
Ishman and Appellant shook hands and exchanged greetings, he also
introduced himself to Appellant and asked him what he was doing. Id. at 8.
Appellant responded to P.O. Hamor that he was talking to Bucci about a job.
Id. P.O. Hamor described Appellant as acting nervously, with his hands
shaking. Id. at 9. P.O. Hamor gave Appellant his pen and notepad to write
down his name and his supervising probation officer. Id. P.O. Hamor
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explained that even though he already knew this information, he made the
request to illustrate Appellant’s nervousness. Id. P.O. Hamor asked
Appellant if he could search his person, to which Appellant said yes. Id. at
10. P.O. Hamor recovered over $200.00 in currency and a mobile phone.
Id. When P.O. Hamor was “shaking out his pants” as part of the search, “a
rubber band fell out on the ground.” Id. Officer Ishman pointed out that it
came out of Appellant’s pants. Id. P.O. Hamor asked Appellant if he “had
anything on him[]” to which Appellant said no. Id. P.O. Hamor asked
Appellant for his consent to search his pants. Id. Appellant unbuckled his
belt, and P.O. Hamor pulled Appellant’s pants away from his stomach. P.O.
Hamor observed the crack cocaine on top of Appellant’s genitals. Id.
Looking at the circumstances, we conclude that at the relevant times,
Appellant was subjected to a mere encounter, and not an investigative
detention. Both the United States Supreme Court and our Supreme Court
have held that a request for identification by police does not itself amount to
a seizure within the meaning of the Fourth Amendment. Hiibel v. Sixth
Judicial Dist. Ct. of Nev., 542 U.S. 177, 185 (2004); Commonwealth v.
Au, 42 A.3d 1002, 1007 (Pa. 2012). In addition, our Supreme Court has
instructed that an investigative detention arises when “an encounter
involving a request for identification could rise to a detention when coupled
with circumstances of restraint of liberty, physical force, show of authority,
or some level of coercion beyond the officer’s mere employment, conveying
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a demand for compliance or that there will be tangible consequences from a
refusal.” Lyles, supra at 304. Here, the officers were pulled up in an
unmarked vehicle without lights or sirens and were approached initially by
Appellant himself. The officers then exchanged greetings and shook hands
with Appellant and inquired into his name and activities. In our view, there
was no identifiable “restraint of liberty, physical force, show of authority, or
… coercion” that escalated this mere encounter into anything more than just
that. Id. Therefore, we conclude that Appellant was not subjected to a
seizure within the meaning of the Fourth Amendment.6 See Walls, supra.
In his second issue, Appellant claims the police lacked reasonable
suspicion to conduct a “probation search.” Id. at 28. However, the trial
court concluded that Appellant consented to the search at issue, as such, no
reasonable suspicion was required. Trial Court Opinion, 1/12/16, at 13.
Appellant does not challenge the trial court’s consent conclusion except to
say that “[t]he fact that Appellant allegedly consented to th[e] search is
irrelevant as the consent would have occurred after the illegal detention.”
____________________________________________
6
Although the Commonwealth argued in the trial court that Appellant was
subjected to a mere encounter, it appears the trial court’s overriding
conclusion was that the officers possessed reasonable suspicion. Trial Court
Opinion, 1/12/16, at 12. It is unclear whether the trial court was
affirmatively rejecting the Commonwealth’s position that this was a mere
encounter, or was assuming that even if it was a seizure, it was
constitutional. Nevertheless, as an appellate court, we “may affirm [the
lower court] for any reason, including such reasons not considered by the
lower court.” Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa.
Super. 2013) (citation omitted).
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Appellant’s Brief at 36. As we have explained above, Appellant’s Fourth
Amendment rights were not violated. Appellant does not raise any other
argument challenging the trial court’s consent conclusion; as a result, we
conclude this issue lacks merit. Therefore, as Appellant’s two suppression
issues fail, the trial court correctly denied Appellant’s motion to suppress.
See Scarborough, supra.
Based on the foregoing, we conclude all of Appellant’s issues are
devoid of merit. Accordingly, the trial court’s June 26, 2015 judgment of
sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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