Com. v. Benitez, J.

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2020
• Docket: 1462 EDA 2019
• Status: Unpublished

Opinion

J-A15017-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : JOSE BENITEZ : : Appellee : No. 1462 EDA 2019

Appeal from the Order Entered April 29, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005816-2017

BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.: FILED SEPTEMBER 15, 2020

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, granting the

suppression motion of Appellee, Jose Benitez.1 We reverse and remand for

further proceedings.

The relevant facts and procedural history of this case are as follows. On

May 22, 2017, Sergeant Brian Myers of the Philadelphia Police Department

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice of appeal that the suppression order substantially handicapped or terminated the prosecution of the Commonwealth’s case. Accordingly, this appeal is properly before us for review. See Commonwealth v. Cosnek, 575 Pa. 411, 421, 836 A.2d 871, 877 (2003) (stating Rule 311(d) applies to pretrial ruling that results in suppression, preclusion or exclusion of Commonwealth’s evidence). J-A15017-20

conducted surveillance at 3329 Bleigh Avenue, responding to complaints

about several Hispanic men entering and exiting the property while carrying

packages. (See N.T. Hearing, 4/29/19, at 28). Sergeant Myers observed two

Hispanic men exit the property and enter a white Acura parked out front. (Id.

at 32). The sergeant followed the Acura to 7347 Belden Street, where one of

the occupants entered the house carrying a box of diapers. (Id. at 33). The

same man left the house approximately five minutes later and reentered the

Acura. (Id.) Sergeant Myers followed the Acura back to 3329 Bleigh Avenue,

where the two men parked and went back inside the house. (Id. at 33-34).

Another unidentified male arrived at the house and went inside for

approximately fifteen minutes. (Id. at 34). Then, the three men exited the

house together, entered the Acura, drove to Crispin Street, and pulled over.

(Id.) A white Nissan pulled up behind the Acura. (Id.) Sergeant Myers

recognized the Nissan from a prior investigation. (Id. at 38). The driver of

the Acura exited his vehicle, entered the Nissan, remained there for three to

five minutes, returned to the Acura, and drove off. (Id. at 35).

Sergeant Myers followed the Nissan until it parked at the intersection of

Stanwood and Eastwood Streets. (Id.) A short time later, a white Jeep

Cherokee arrived and parked in front of the Nissan. (Id.) The driver of the

Nissan exited his vehicle and entered the front passenger seat of the Jeep.

(Id. at 36). After five minutes, the Nissan driver exited the Jeep, returned to

the Nissan, retrieved an object, and gave it to the Jeep driver. (Id. at 37).

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Following this exchange, both vehicles left the scene and Sergeant Myers

concluded his surveillance. (Id.) Significantly, Sergeant Myers did not

observe Appellee or his co-defendant, Yasser Almanzar,2 during the May 22,

2017 surveillance.

On May 24, 2017, Sergeant Myers returned to 3329 Bleigh Avenue to

conduct additional surveillance. (Id. at 43). Sergeant Myers received

assistance from Officer Edward Slater, who was conducting surveillance of the

white Jeep at 2204 Stanwood Street. (Id.) Officer Slater observed Appellee

exit the property and walk to the Jeep. (Id. at 44). At the same time, Mr.

Almanzar arrived in a white Chevrolet Malibu, which he “backed up to the

white Jeep, so the trunk of the Chevy was facing the trunk of the” Jeep. (Id.)

Appellee retrieved a large, green bag from the trunk of the Jeep and

transferred it into the trunk of the Chevrolet. (Id. 44-45). Mr. Almanzar

drove off in the Chevrolet, and Appellee subsequently left in the Jeep. (Id. at

49, 59).

Officer Slater followed the Chevrolet, and Sergeant Myers joined the

pursuit. (Id.) Once the Chevrolet pulled over on the 3000 block of Gilford

Street, Sergeant Myers decided to stop the vehicle for further investigation.

(Id. at 50). A search of the trunk revealed 1,150 bundles of heroin inside the

green bag. (Id. at 53). Sergeant Myers contacted a back-up officer and

2 Mr. Almanzar is the appellee in a related appeal, docketed at 1463 EDA 2019.

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ordered him to conduct a stop of Appellee in the Jeep. (Id. at 59). The back-

up officer stopped the Jeep, but did not discover any drugs. (Id. at 59). An

additional search of the residence at 2204 Stanwood Street yielded cellphones

and cash, but no drugs or drug paraphernalia. (Id. at 18).

The Commonwealth charged Appellee and Mr. Almanzar with possession

of a controlled substance, possession of a controlled substance with intent to

deliver, possession of drug paraphernalia, and criminal conspiracy.3 On July

26, 2017, Mr. Almanzar filed an omnibus pretrial motion to suppress all

evidence obtained as a result of the warrantless vehicle search. Appellee filed

his own suppression motion on September 14, 2018. On April 29, 2019, the

court conducted a joint suppression hearing.

At the hearing, Sergeant Myers testified that he had been involved with

“[o]ver a thousand” narcotics investigations in the past eighteen years. (N.T.

Hearing at 23). Sergeant Myers explained that the property subject to the

initial complaints, 3329 Bleigh Avenue, had iron bars covering the windows

and doors on the first floor. (Id. at 29). Sergeant Myers claimed he had seen

a similar setup “one other time, probably a year before” in a previous narcotics

investigation in the same neighborhood. (Id. at 30).

Ultimately, Sergeant Myers provided the reasons for his decision to stop

Mr. Almanzar in the Chevrolet. Sergeant Myers “believed a large amount of

3 35 P.S. § 780-113(a)(16), (30), (32), and 18 Pa.C.S.A. § 903, respectively.

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narcotics were in the trunk of” the Chevrolet. (Id. at 50). Sergeant Myers

based his decision on the following:

Based on the observations that we [saw] on Stanwood Street on the 22nd [of May] and quick meetings between different people in different vehicles, leaving the area, the bag being transferred from the Jeep to the Chevy, my past investigations, being familiar with the cars being utilized, again, the Chevy[4] and Nissan.

(Id. at 51).

Officer Slater testified that he had served as a police officer for twelve

years with two-and-a-half years of narcotics work. (Id. at 73). Officer Slater

had conducted approximately ten narcotics investigations in the neighborhood

at issue, “usually pertaining to bag houses of heroin.” (Id. at 72). Although

Officer Slater observed Appellee retrieve the bag from the trunk of the Jeep

and transfer it to the Chevrolet, he did not observe any drugs or the exchange

of money. (Id. at 86-89).

Mr. Almanzar also testified, stating he had received permission to drive

the Chevrolet from a man named “Jose.” (Id. at 92). Although Jose was “not

4 Earlier in his direct examination, Sergeant Myers stated that he had seen the same Chevrolet during a prior investigation. (N.T. Hearing at 47). Defense counsel objected, the court sustained the objection, the parties discussed the matter further, and defense counsel withdrew his objection. (Id. at 47-48). Following the withdrawal of the objection, the prosecutor did not immediately resume her line of questioning concerning Sergeant Myers’ prior encounter with the Chevrolet. (Id. at 49). When Sergeant Myers subsequently reiterated that his prior encounter with the Chevrolet contributed to his decision to stop the vehicle on this occasion, defense counsel did not object to the testimony. (Id. at 51).

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really a close friend,” Mr. Almanzar asked to borrow the Chevrolet after seeing

Jose “one day at the barbershop.” (Id. at 92, 94). Mr. Almanzar told Jose he

“needed to pick up baby clothes,” and Jose agreed that he could use the car

for the day. (Id. at 98).

Immediately following the hearing, the court found “the evidence to be

insufficient to meet probable cause for stopping” the Chevrolet, and it

suppressed the drugs obtained as a result of the vehicle search. (Id. at 119).

The Commonwealth timely filed a notice of appeal on May 21, 2019. On May

23, 2019, the court ordered the Commonwealth to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The Commonwealth

timely filed its Rule 1925(b) statement on June 12, 2019.

The Commonwealth raises three issues on appeal:

Did the suppression court err in concluding that the search of a vehicle violated [Appellee’s] Fourth Amendment rights despite his failure to establish a reasonable expectation of privacy and where, in any event, there was probable cause to search?

Did the suppression court err in precluding the Commonwealth from entering evidence of the officers’ prior observation and experiences that was directly relevant to the totality of the circumstances supporting probable cause?

Did the suppression court err in failing to consider the officer’s extensive experience where a nexus existed between the experience and the observations made in this case?

(Commonwealth’s Brief at 4).

In its first issue, the Commonwealth argues the suppression court “did

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not hold [Appellee] to his threshold burden to prove that he had a reasonable

expectation of privacy in the searched vehicle.” (Id. at 14). The

Commonwealth insists Appellee did not own the vehicle, and he “was not even

present in it at the time of the search.” (Id.) The Commonwealth concludes

Appellee did not have a reasonable expectation of privacy in the vehicle or its

contents, and this Court must reverse the suppression order on this basis. We

agree.

When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are well-settled:

[We] consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court’s findings of fact bind an appellate court if the record supports those findings. The suppression court’s conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Our standard of review is restricted to establishing whether the record supports the suppression court’s factual findings; however, we maintain de novo review over the suppression court’s legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa.Super. 2016), appeal

denied, 639 Pa. 157, 159 A.3d 933 (2016) (internal citations and quotation

marks omitted). “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given to

their testimony. The suppression court is free to believe all, some or none of

the evidence presented at the suppression hearing.” Commonwealth v.

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Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003), appeal denied, 577 Pa. 701,

847 A.2d 58 (2004) (internal citations omitted).

“The concept of standing in a criminal search and seizure context

empowers a defendant to assert a constitutional violation and thus seek to

exclude or suppress the government’s evidence pursuant to the exclusionary

rules under the Fourth Amendment of the United States Constitution or Article

1, Section 8 of the Pennsylvania Constitution.” Commonwealth v. Powell,

994 A.2d 1096, 1103 (Pa.Super. 2010), appeal denied, 608 Pa. 665, 13 A.3d

477 (2010) (quoting Commonwealth v. Hawkins, 553 Pa. 76, 80, 718 A.2d

265, 266 (1998)). “A defendant moving to suppress evidence has the

preliminary burden of establishing standing and a legitimate expectation of

privacy.” Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.Super.

2011) (quoting Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super.

2009) (en banc)).

Standing requires a defendant to demonstrate one of the following: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged includes as an essential element[,] the element of possession; or (4) a proprietary or possessory interest in the searched premises. A defendant must separately establish a legitimate expectation of privacy in the area searched or thing seized. Whether [a] defendant has a legitimate expectation of privacy is a component of the merits analysis of the suppression motion. The determination whether [a] defendant has met this burden is made upon evaluation of the evidence presented by the Commonwealth and the defendant.

Powell, supra at 1103-04 (quoting Commonwealth v. Burton, 973 A.2d

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428, 435 (Pa.Super. 2009) (en banc)) (internal citations omitted).

Regarding challenges to the search of an automobile, we note:

[G]enerally under Pennsylvania law, a defendant charged with a possessory offense has automatic standing to challenge a search. However, in order to prevail, the defendant, as a preliminary matter, must show that he had a privacy interest in the area searched.

An expectation of privacy is present when the individual, by his conduct, exhibits an actual (subjective) expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances.

Burton, supra at 435 (internal quotation marks omitted). See also

Commonwealth v. Brown, 64 A.3d 1101, 1106-07 (Pa.Super. 2013), appeal

denied, 622 Pa. 747, 79 A.3d 1096 (2013) (holding defendant failed to

establish reasonable expectation of privacy in vehicle where he offered no

evidence of permission to drive from vehicle owner).

Instantly, Mr. Almanzar testified that the owner of the Chevrolet gave

him permission to use the vehicle. Appellee, however, did not present any

evidence demonstrating his connection to the vehicle. Likewise, Appellee did

not even occupy the Chevrolet at the time of the search. Absent more,

Appellee had no demonstrable, reasonably cognizable expectation of privacy

in a vehicle he did not own and for which he could show no authority to occupy

or operate. See Burton, supra; Powell, supra. Thus, the court should have

denied Appellee’s suppression motion concerning the contraband recovered

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from the Chevrolet.5 Accordingly, we reverse the order granting Appellee’s

suppression motion and remand for further proceedings.6

Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/15/2020

5 In the appeal at 1463 EDA 2019, we determined the court properly granted Mr. Almanzar’s suppression motion. Although it may appear incongruous not to reach the same result for Appellee, we reiterate that a defendant cannot vicariously assert the privacy rights of others. See Powell, supra at 1107- 08 (explaining defendant cannot prevail upon suppression motion unless he demonstrates that challenged police conduct violated his own personal privacy interests; appellee did not establish violation of personal privacy rights, even though court properly granted co-appellee’s suppression motion).

6 Due to our disposition, we need not address the Commonwealth’s remaining issues.

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