Com. v. Stilo, A. , 2016 Pa. Super. 91 ( 2016 )

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2016 Pa. Super. 91
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY STILO
Appellant No. 2838 EDA 2014
Appeal from the Judgment of Sentence July 23, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0043949-2013
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
OPINION BY OTT, J.: Filed: April 28, 2016
Anthony Stilo appeals from the July 23, 2014, judgment of sentence
imposed by the Philadelphia County Municipal Court on his conviction for
possession of a controlled substance,1 as confirmed by the order entered in
the Court of Common Pleas of Philadelphia County denying his petition for
writ of certiorari. In this appeal, Stilo challenges the denial of his
suppression motion. Based upon the following, we affirm.
The common pleas court judge summarized the procedural and factual
background of this case, as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
See 35 P.S. § 780-113(a)(16). Stilo was sentenced to serve a term of six
months’ probation.
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On November 13, 2013, Defendant Anthony Stilo, was arrested
and charged with Knowing and Intentional Possession of a
Controlled Substance under 35 [P.S.] § 780-113(a)(16). On
June 9, 2014, the Honorable Martin S. Coleman denied [Stilo’s]
motion to suppress any and all physical evidence recovered
during his arrest. On July 23, 2014, the Honorable David C.
Shuter found [Stilo] guilty of Knowing and Intentional Possession
of a Controlled Substance and sentenced him to six months
reporting probation. On August 20, 2014, [Stilo] filed a Petition
for Writ of Certiorari which this Court denied on September 22,
2014.
****
On June 9, 2014, a motion to suppress physical evidence was
held before the Honorable Martin S. Coleman. At that hearing,
Police Officer Bruce Cleaver testified and his testimony
established the following.
On November 13, 2013, at approximately 2:45 p.m. Officer
Cleaver set up surveillance outside [address deleted] Kelvin
Avenue due to receipt of a narcotics complaint. N.T. 6/9/14 pp.
6, 13. At approximately 3:00 p.m., [Stilo] arrived at the location
as a passenger in a white Ford Explorer, N.T. 6/9/14 p. 6. [Stilo]
exited the vehicle and entered the basement of the property
where he remained for approximately three minutes. N.T. 6/9/14
p. 6. As [Stilo] exited the property, an unknown white male
arrived on location in a red Ford pickup truck and entered the
property. N.T. 6/9/14 pp. 6-7, 12. [Stilo] re-entered the Ford
Explorer and waited a few minutes. N.T. 6/9/14 p. 7. Shortly
thereafter, the unknown white male exited the property and
entered his truck. N.T. 6/9/14 p. 7. Both [Stilo] and the male left
the location simultaneously. N.T. 6/9/14 pp. 7, 12. [Stilo] was
followed, stopped, and removed from the vehicle. N.T. 6/9/14
pp. 7, 11. Officer Cleaver spoke to [Stilo] and [Stilo] gave the
officer a clear Ziploc bag containing marijuana and he was
arrested. N.T. 6/9/14 p. 7; 11. Following his arrest, [Stilo] was
searched and recovered from his person were: four white Ativan
pills, seventeen round blue Oxycodone pills, and two round white
Oxycodone pills. N.T. 6/9/14 p. 7.
Common Pleas Court Opinion, 2/12/2015, at 2.
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In Stilo’s motion to suppress the evidence, he contended police lacked
reasonable suspicion that he was engaged in criminal activity when they
stopped his vehicle. The municipal court judge denied the motion, and Stilo
was convicted and sentenced, as stated above. Stilo then filed a petition
for writ of certiorari with the court of common pleas, which denied the
petition. This appeal followed.2
Stilo raises the following argument for our review:
[T]he trial court err[ed] in denying [Stilo’s] motion to suppress
physical evidence in this case, where police merely saw him
enter and leave after a few minutes a house police believed,
based on an anonymous tip, was a drug house, where police did
not see any transaction, cash, suspected contraband, or any
other item, and where police saw just one other person enter
and leave[.]
Stilo’s Brief at 3.
The principles that guide our review are as follows:
Our standard of review in addressing a challenge to the denial of
a suppression motion is
limited to determining whether the suppression court’s
factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct.
Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of
the Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression
court’s factual findings are supported by the record, we
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2
Stilo timely complied with the order of the court of common pleas to file a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(b).
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are bound by these findings and may reverse only if the
court’s legal conclusions are erroneous. The suppression
court’s legal conclusions are not binding on an appellate
court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our
plenary review.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa.
2010), cert. denied, 562 U.S. 832, 131 S. Ct. 110, 178 L. Ed. 2d
32 (U.S. 2012) (citations, quotations and ellipses omitted).
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining
a ruling on a pre-trial motion to suppress. See In Interest of
L.J., 79 A.3d 1073, 1083-1087 (Pa. 2013).
It is well-established that there are three categories of
interaction between citizens and police officers. As our Supreme
Court has clearly articulated:
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention” must
be supported by a reasonable suspicion; it subjects a
suspect to a stop and a period of detention, but does not
involve such coercive conditions as to constitute the
functional equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Gutierrez, 2012 Pa. Super. 14, 36 A.3d
1104, 1107 (Pa. Super. 2012), appeal denied, 616 Pa. 643, 48
A.3d 1247 (Pa. 2012), quoting Commonwealth v. Ellis, 541
Pa. 285, 662 A.2d 1043, 1047 (Pa. 1995) (citations omitted). …
… In [Commonwealth v.] Foglia, [2009 Pa. Super. 138, 979
A.2d 357 (Pa. Super. 2009) (en banc), appeal denied, 605 Pa.
694, 990 A.2d 727 (Pa. 2010),] this Court set forth the standard
that must be applied in determining whether an investigative
detention of an individual is constitutionally sound:
A police officer may detain an individual in order to
conduct an investigation if that officer reasonably
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suspects that the individual is engaging in criminal
conduct. This standard, less stringent than probable
cause, is commonly known as reasonable suspicion. In
order to determine whether the police officer had
reasonable suspicion, the totality of the circumstances
must be considered. In making this determination, we
must give due weight to the specific reasonable
inferences the police officer is entitled to draw from the
facts in light of his experience. Also, the totality of the
circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate
criminal conduct. Rather, even a combination of innocent
facts, when taken together, may warrant further
investigation by the police officer.
Id. at 360 (citations and internal quotes omitted).
Commonwealth v. Ranson, 103 A.3d 73, 76–77 (Pa. Super. 2014), appeal
denied, 117 A.3d 296 (Pa. 2015).
Here, Stilo argues Philadelphia Police Officer Bruce Cleaver,3 and his
partner, Officer Keenan, lacked reasonable suspicion that he was engaged in
criminal activity and “simply stopped the first of two separate individuals
they saw enter and exit the house, individuals who, in a residential area of
Philadelphia at 3:00 p.m., could have come for any number of [innocent]
reasons[.]” Stilo’s Brief at 23–24. Stilo contends “[t]he arrival of the two
[individuals] at the same time could have been mere coincidence.” Id. at
24. Stilo maintains police observed no transactions or furtive behavior; the
area was not described as a high crime area or area where drug sales
regularly occur; and little information was presented about the officers’
____________________________________________
3
Only Officer Cleaver testified at the suppression hearing.
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training or experience. See Stilo’s Brief at 17–18. In support of his
argument, Stilo distinguishes Commonwealth v. Myers, 728 A.2d 960 (Pa.
Super. 1999), which the common pleas court relied on in denying his
petition for writ of certiorari. In addition, Stilo contrasts his case with
Commonwealth v. Patterson, 591 A.2d 1075 (Pa. Super. 1991).
In Myers, police officers began conducting surveillance of a home in
Philadelphia after receiving a number of complaints that the home was the
site of a drug trafficking operation. While conducting surveillance, the police
arrested two persons for narcotics violations on March 25 and 26, 1997. On
April 1, 1997, at approximately 5:00 p.m., the police observed a man enter
the home, and exit two minutes later. Approximately one hour later, the
officer observed a woman enter the house and then quickly depart. At 6:30
p.m., the officers observed Myers knock on the door of the home, gain
admittance and depart approximately two minutes later. The surveillance
officer thought he saw something in Myer’s hand, but it was closed. He then
placed it in his pocket, entered his vehicle, and drove away. The officers
followed, pulled him over, removed him from his vehicle, and patted him
down. During this pat-down, the officers discovered two plastic packets of
crack cocaine. See id., 728 A.2d at 961. Myers was convicted of knowing
and intentional possession of cocaine.
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On appeal, this Court held that the officers did have reasonable
suspicion4 to stop Myers, explaining:
The police had received at least four citizen complaints regarding
drug sales occurring at 2507 S. 62nd Street. While conducting
surveillance of the property, police had arrested two drug
purchasers the weekend prior to Appellant’s arrest. On the day
Appellant was arrested, the police observed two other individuals
enter and exit the property after only a few minutes - a male at
5:00 p.m. and a female at 6:00 p.m. When the police saw
Appellant do the same at approximately 6:30 p.m., they had
reasonable suspicion to stop him for investigative purposes,
since in the eyes of a trained officer, the surrounding
circumstances give rise to reasonable suspicion that criminal
activity is afoot.
Id. at 962–963 (citation omitted).
In Patterson, officers were conducting surveillance of a crack house
identified by neighbors. Between 2:30 and 4:30 a.m., the officers observed
five people enter the rear driveway of the home and knock on the back door,
waiting for someone to answer. When questioned by police, none of the
individuals could logically explain their presence in the dark alley entrance of
a reputed crack house. Somewhere between 4:30 and 4:55 a.m., police saw
Patterson enter the alley and knock on the crack house door. Police asked
him what he was doing, and he responded he had come to see someone.
Fearing for their safety in the dark early morning hours, the officers frisked
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4
The Myers Court rejected the Commonwealth’s argument police had
probable cause to arrest Myers. The Court stated: “[W]hen no transaction is
observed, probable cause to arrest someone entering a house that happens
to be under surveillance is lacking.” Id., 728 A.2d at 962.
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Patterson and found a handgun with ten live rounds of ammunition in the
clip. Following his arrest, police searched him and found 54 vials of crack
cocaine and $ 220 in cash. Patterson, 591 A.2d 1076–1077. Patterson was
convicted of possession of a controlled substance, possession with intent to
distribute, carrying a firearm without a license, and carrying a firearm in a
public place.
On appeal, Patterson challenged the denial of his suppression motion.
With regard to the stop, this Court concluded:
In the instant matter, police received numerous complaints
regarding drug sales conducted from the back door of 7510
North 20th Street. These tips were corroborated by suspicious
activity occurring in the alley behind the house the evening of
the appellant’s arrest. Within a two hour period in the early
morning hours of September 3, 1988, police witnessed five
suspicious looking subjects approach and knock on the rear door
of the crack house, waiting for someone to answer. When asked,
none of the individuals could explain to police for what reason or
why they were there. Appellant was the sixth person within two
and one-half hours to enter the alley and knock on the crack
house door. The combination of the neighbors’ reports and the
suspicious heavy foot traffic during the wee hours of the morning
in the dark back alley of a suspected crack house is sufficient to
justify a stop.
Id. at 1077–1078.
Stilo argues that in his case police had substantially less information
than police had in Myers and Patterson, and therefore the court erred in
denying his motion to suppress. We are not persuaded by this argument.
Here, Officer Cleaver testified police had received a “narcotics
complaint about [the] specific address.” N.T., 6/9/2014, at 13. Upon
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receiving the complaint, Officer Cleaver determined the owner of the
residence had been previously arrested by the narcotics unit. See id. at 13.
Officer Cleaver was sent to the scene immediately, and set up surveillance at
2:45 p.m., on November 13, 2013. Fifteen minutes later, at approximately
3:00 p.m., he saw Stilo pull up as a passenger in a white Ford Explorer, exit
the vehicle, and walk into the basement of the property, which was a
converted garage with a door. Id. at 6. After three minutes, Stilo exited
the property. See id. As Stilo was walking out of the property, another
male arrived in a red pickup truck and went into the property. Stilo returned
to the passenger seat of the Ford Explorer and waited a few minutes. The
second individual then came out of the property and returned to his pickup
truck. See id. at 6–7. Both vehicles left at the same time, and police
stopped Stilo’s vehicle. See id. at 7, 12. Officer Cleaver testified that he
had been a police officer for 16 years, had worked in the narcotics unit for
six years, and had conducted several narcotics surveillances. See id. at 9.
He had seen “this type of interaction where an individual goes into a house
and comes out a short time later.” Id. at 9. He further stated that, “With
the two males walking in at the same time, I believe it was a drug
transaction going on.” Id.
Based on our careful review, we find, contrary to Stilo’s argument,
that Myers and Patterson support the suppression court’s decision to deny
the motion to suppress. Furthermore, to the extent that Stilo claims “Officer
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Cleaver should have exercised more discipline to establish a pattern before
stopping Mr. Stilo,”5 the Commonwealth correctly points out this Court has
held that “[t]he existence of arguably more persuasive means of
corroboration [i.e., controlled buy, observations of specifically prohibited
transactions, or confirmation with other informants] did not by itself render
insufficient that information which was produced by police action.”
Commonwealth v. Woods, 590 A.2d 1311, 1314 (Pa. Super. 1991).6
When police received the “narcotics complaint,” Officer Cleaver
“verified”7 the complaint in learning that the owner of the subject residence
had previously been arrested on drug charges by members of his narcotics
unit. As such, police had information of a prior nexus of the house to drugs.
During surveillance, police witnessed the same suspicious activity of Stilo
and another individual, separately entering and then leaving the subject
residence after a very brief visit, within moments of each other. This activity
was viewed through the eyes of a trained officer, Officer Cleaver, who
believed it was a drug transaction.
Stilo’s argument fails because “[a] suppression court is required to
take[] into account the totality of the circumstances—the whole picture.”
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5
Stilo’s Reply Brief, at 4. See also Stilo’s Brief at 24 (“The officers should
have investigated further before stopping anybody.”).
6
See Commonwealth’s Brief at 11, citing Woods.
7
N.T., 6/9/2014, at 13.
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Commonwealth v. Carter, 105 A.3d 765, 769 (Pa. Super. 2014)
(quotations and citation omitted), appeal denied, 117 A.3d 295 (Pa. 2015).
“[E]ven in a case where one could say that the conduct of a person is
equally consistent with innocent activity, the suppression court [is not]
foreclosed from concluding that reasonable suspicion nevertheless existed.”
Id. at 772. “In conducting a reasonable suspicion inquiry, a suppression
court is required to afford due weight to the specific, reasonable inferences
drawn from the facts in light of the officer’s experience[.]” Id. at 773
(quotations and citation omitted).
Applying these tenets, we find no error in the suppression court’s
conclusion that police had reasonable suspicion to stop Stilo’s vehicle. 8
Accordingly, we affirm.
Judgment of sentence affirmed.
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8
We note Stilo’s argument that the common pleas court judge, in her
discussion of the facts giving rise to reasonable suspicion that criminal
activity was afoot, misstated the sequence of events in stating that “Officer
Cleaver received information that on November 12, 2013, numerous
narcotics and the sum of $10,315.00 had been recovered from the same
location.” Common Pleas Court Opinion, 2/12/2014, at 4. The record
reflects that the subject residence was not searched pursuant to a warrant
until after Stilo’s arrest on November 13, 2013. See N.T., 6/9/2014, at 5,
7–8. This misstatement in the Rule 1925(a) opinion, however, has no
bearing with respect to the suppression ruling that was made by the
municipal court judge, and is irrelevant to our review of suppression hearing
record and our analysis.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2016
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