Com. v. Brogdon, L.

2019 Pa. Super. 297, 220 A.3d 592

• Court: Superior Court of Pennsylvania
• Decided: October 3, 2019
• Docket: 1276 EDA 2018
• Status: Published

Opinion

J-A19038-19

2019 PA Super 297

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LINZIE BROGDON : : Appellant : No. 1276 EDA 2018

Appeal from the Judgment of Sentence April 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001708-2017

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED OCTOBER 03, 2019

Appellant, Linzie Brogdon, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia following his conviction

at a bench trial on the charges of persons not to possess firearms, firearms

not to be carried without a license, carrying firearms on a public street, and

resisting arrest.1 After a careful review, we affirm.

The relevant facts and procedural history are as follows: During the

evening of October 29, 2016, on the 2900 block of Howard Street in

Philadelphia, John Gonzalez was robbed at gunpoint. Appellant was arrested

in connection with the robbery, and on July 10 and 14, 2017, Appellant,

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1 18 Pa.C.S.A. §§ 6105, 6106, 6108, and 5104, respectively.

____________________________________ * Former Justice specially assigned to the Superior Court. J-A19038-19

represented by counsel, litigated a motion to suppress the physical evidence

seized by the police.2

At the suppression hearing, the Commonwealth presented the testimony

of Police Officer Stephen Bennis and Detective Matthew Hagy.3 Specifically,

Officer Bennis testified that, on October 29, 2016, “there was a robbery, point-

of-gun, at the 2900 block of North Howard[.]” N.T., 7/10/17, at 8. Officer

Bennis described the 2900 block of Howard Street as “[o]ne of the most

violent, high drug areas in the 25th District and probably in the City.” Id. at

17.

On October 30, 2016, Detective Hagy and a sergeant informed Officer

Bennis that, in connection with the robbery, the police were attempting to

“identify an offender who went by the nickname of Fifty. And they provided

[Officer Bennis with] a physical description of a tall, black male, approximately

6’4”/6’5”.” Id. at 9. Officer Bennis testified that, based on the information

provided to him, he had “an idea who they were talking about.” Id.

Specifically, Officer Bennis indicated that, in reference to the 2900 block

of Howard Street, he was familiar with Appellant, who matched the description

provided by Detective Hagy and the sergeant. Id. Officer Bennis explained

2 The certified record contains neither a pre-trial suppression motion nor a docket entry related to the filing thereof. However, this Court has been provided with the transcripts related to Appellant’s litigation of his suppression motion.

3 Appellant presented no witnesses.

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that, during the past three years of his career, he has routinely patrolled

Howard Street and, approximately once or twice a day, he observes Appellant

in the 2900 block of Howard Street near the Chinese store or the bodega. Id.

at 10, 17. Officer Bennis indicated Appellant resides on the 2800 block of

Howard Street, which is just one block south of where the robbery occurred.

Id. at 10.

Officer Bennis testified he provided Detective Hagy and the sergeant

with information regarding Appellant, and at some point during his tour of

duty on October 30, 2016, he returned to the police station where his fellow

police officers informed him witnesses had positively identified Appellant as

being involved in the robbery. Id. Thereafter, at around 9:00 p.m. on

October 30, 2016, as Detective Hagy and the sergeant were in the area of the

robbery attempting to recover video, they observed Appellant. Id. at 11.

Accordingly, they provided “flash information”4 indicating they had observed

the male, Appellant, who is also known as “Fifty.” Id. Using the police radio,

Officer Bennis asked for Appellant’s specific location, and the sergeant

indicated Appellant was “in the area of A and Tusculeum[,]” which is

approximately two blocks from the 2900 block of Howard Street. Id.

4 “Flash information” is generally based on a report from investigating officers

and is broadcast to other police units in the district. Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa.Super. 1986).

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Officer Bennis and his partner proceeded to the 2900 block of Howard

Street where they saw Appellant travelling southbound on a bicycle. Id.

Officer Bennis and his partner exited their patrol vehicle, stopped Appellant,

removed him from the bicycle, and walked him towards the police vehicle. Id.

at 11-12. As the officers escorted Appellant towards the back of the police

vehicle, Appellant “locked up his arms and began reaching towards his jacket,

actively resisting [the officers’] attempts to place him into custody.” Id. at

12. As the two officers struggled to place handcuffs on Appellant, the trio fell

to the ground, at which point Officer Bennis’ partner placed Appellant’s left

hand into a handcuff. Id. As the officers attempted to place the handcuff on

Appellant’s right hand, Appellant continued to struggle and reach into his

jacket. Id. With the additional assistance of Detective Hagy and the sergeant,

who had arrived on the scene, the officers handcuffed Appellant’s right hand

behind his back, at which point a firearm fell out of Appellant’s jacket. Id. at

13.

The officers retrieved the firearm from the ground and discovered it was

loaded with one live round in the chamber and four in the magazine. Id. at

14. The officers then searched Appellant’s person and recovered thirteen

clear, ziplock packets containing a blue glassy insert. The inserts were

stamped “PR,” and they contained an off-white powdery substance. Id. The

police also seized a red and black mountain bicycle, which Appellant had been

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riding, and his canvas shoulder bag, as well as $36.00 from Appellant’s

person. Id. at 14-16.

On cross-examination, Officer Bennis confirmed that, when he and his

partner saw Appellant on the bicycle during the evening of October 30, 2016,

they were in a marked patrol car. Id. at 19. Appellant was biking southbound

on Howard Street while the officers were driving northbound. Id. Officer

Bennis confirmed that he and his partner approached Appellant because they

believed he had been involved in the previous night’s robbery. Id. at 20.

Officer Bennis indicated the officers did not approach Appellant with guns

drawn; but rather, Officer Bennis stopped Appellant by quickly exiting the

police vehicle and stepping in front of the bicycle, which Appellant was riding.

Id. at 21. Officer Bennis confirmed that Appellant stopped the bicycle and

Appellant dismounted with the officer “maintaining a hold on him.” Id. at 22.

Appellant then dropped the bicycle to one side and, as the officers attempted

to handcuff him, Appellant struggled while attempting to reach into his jacket.

Id. at 22-23. Officer Bennis reiterated that, during the struggle, a loaded

handgun fell out of Appellant’s jacket. Id. at 24.

On redirect-examination, Officer Bennis explained that the handgun fell

out of Appellant’s left coat pocket, which was the pocket that Appellant kept

attempting to reach into during the struggle. Id. at 25. On recross-

examination, Officer Bennis admitted that, prior to stopping Appellant, he did

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not observe a “bulge” in Appellant’s jacket; however, he testified “the

interaction went from casual to fighting within a second or so.” Id.

Detective Hagy testified that he was the lead investigator assigned to

the robbery case, and after gathering information from the victim, Mr.

Gonzalez, he interviewed Reginald Carroll at approximately 4:00 a.m. on

October 30, 2016. N.T., 7/14/17, at 6-7. Mr. Carroll informed Detective Hagy

that “a male with the nickname of Fifty” was involved in the robbery; Mr.

Carroll described “Fifty” as a black male who was 6’5” tall. Id. at 7, 10.

Moreover, on October 30, 2016, at approximately 5:45 p.m., a witness, Anna

Gomez, arrived at the police station of her own volition, and in the presence

of Detective Hagy, she reported that “three males [were] involved [in the

robbery] and the male that pushed John Gonzalez off the bike, his nickname

was Fifty.” Id. at 9.

Detective Hagy testified that, in response to Mr. Carroll and Ms. Gomez

informing him a man with the nickname of “Fifty” was involved in the robbery,

he spoke with Officer Bennis, who routinely patrolled the area where the

robbery occurred. Id. Detective Hagy indicated that:

Based on the flash and the nickname, [Officer Bennis] gave us the name of a male by the name of [Appellant]—I believe he just said by the [last] name of Brogdon. I was able to go into the police system and I found a male by the name of Brogdon who lived at 2955 Howard Street and also the male was approximately 6’5”. Based on that, I developed two photo arrays with [Appellant] as one of the males.

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Id. at 10. Detective Hagy confirmed that Appellant matched the description

provided by Mr. Carroll. Id. at 11.

Detective Hagy testified a fellow officer showed the photo arrays to Ms.

Gomez at 7:30 p.m. and to Mr. Carroll at 7:55 p.m. on October 30, 2016. Id.

at 12. The fellow officer reported that both individuals chose Appellant’s photo

from the array. Id. at 12-13. Detective Hagy then informed Officer Bennis

and his partner of the positive identifications and requested they be on the

lookout for Appellant, who was considered to be armed. Id. at 13. Meanwhile,

Detective Hagy, along with the sergeant, proceeded to the Chinese store on

the corner of Howard and Cambria to determine whether there was video of

the robbery. Id. at 14.

On cross-examination, Detective Hagy confirmed that, shortly after the

robbery, he interviewed Mr. Gonzalez, who reported he was robbed by two

males, one of whom pointed a handgun at him. Id. at 15-16. Mr. Gonzalez

reported that one of the men was wearing black pants and a black hoodie

while the other man was wearing blue jeans and a black hoodie. Id. Mr.

Gonzalez indicated the two men had taken his wallet and cell phone. Id.

Detective Hagy confirmed that Mr. Gonzalez told him he was pushed off of his

bicycle during the robbery, he ran away on foot, and he flagged down a police

vehicle. Id. at 17. The police then transported Mr. Gonzalez back to the

scene. Id.

Upon further cross-examination, Detective Hagy testified as follows:

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Q. While they were transporting [Mr. Gonzalez] back to the scene, he actually points out to those officers, there is the man who pointed the gun at me, right? A. Correct, he was actually in the back of our car at that point. He was too afraid to walk down the street on his own, so we put him in our unmarked car. While we were at the scene, and I was taking photographs of the scene and processing the scene, [Mr. Gonzalez] saw one of the males that he thought was involved, yes. Q. Who was in the car that he pointed that male out to, if you were checking out the scene? A. There were two officers that were at the scene with me—I would have to look, I forget their names—who drove off and stopped the male. And then they came over police radio and asked us to take [Mr. Gonzalez] to that location, I think it was the next block over. We went to that location and positively ID’d one of the males. Q. The male that [Mr. Gonzalez] identified as having robbed [him was] Reginald Carroll, correct? A. That is correct. Q. Mr. Carroll was taken to East Detectives and also gave a statement? A. Yes. Q. That statement was videotaped, correct? A. That’s correct. Q. There are no written records of that? There is not a 75483 for that, right? A. No. Q. In the course of that interview, Mr. Carroll told either you or other officers involved in the case that it was [Appellant], also known as Fifty, who was involved in the robbery of [Mr. Gonzalez], right? A. That is correct. Q. In other words, the very individual who has been accused by the complainant of robbing him says, no, it wasn’t me, it was Fifty? A. Yes, and he gave a second male also.

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Q. And you have reason to believe that the second male is Kareem Davis? A. That’s correct. Q. At that point, the only person that you have identifying [Appellant] as having been involved in this robbery is the one who is actually accused by the complainant, right? A. At that point, yes. THE COURT: At what point are we talking about? You said at this point, I am trying to figure out how it pertains to the stop. THE WITNESS: At 4:00 a.m., Reginald Carroll was interviewed and the post-[M]iranda statement— THE COURT: 4:00 a.m. on the 30th? THE WITNESS: Yes, of the 30th. THE COURT: There was a stop that evening? THE WITNESS: Yes, he said a male by the name of Fifty. And then Anna Gomez showed up later that night at 5:45 p.m. She just showed up and— THE COURT: I just wanted to get my timeline straight. [DEFENSE COUNSEL]: May I continue, Your Honor? THE COURT: Of course. Q. Detective, it is about 12/13 hours after Reginald Carroll gives his statement that Ms. Gomez walks into East Detectives, right? A. Yes. Q. I think you said you were present for the taking of the statement by Detective Curet? A. Yes. Q. Nowhere in this interview do we learn anything about the relationship between Ms. Gomez and Mr. Carroll, correct? [ADA]: Objection to relevance. THE COURT: Overruled. THE WITNESS: Carroll and—no, no. She was a friend of [Mr.] Gonzalez. Q. I phrased the question slightly awkward. I think you understood it and answered it properly, but suffice [it] to say, you

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do not know what the relationship is at this point between—and by this point, I mean at the taking of the statement— THE COURT: 4:00/5:00 in the morning on the 30th? [DEFENSE COUNSEL]: 5:00 in the evening, Your Honor. THE COURT: You are talking about [Ms.] Gomez? THE WITNESS: Yes, [Ms.] Gomez came in at 5:45 p.m. Q. When Anna Gomez gives her statement, you do not know about the relationship between her and Mr. Carroll? A. No. Q. Ms. Gomez told you that contrary to what the complainant had told you, that there were actually three males involved in robbing [Mr.] Gonzalez, the complainant, right? A. According to [Ms. Gomez], [Appellant] was the one that pushed [Mr. Gonzalez] off the bike and was going through the stuff robbing him. The other two males chased him and she heard gunshots. *** Q. Ms. Gomez described the two—actually Ms. Gomez described the two males that chased after [Mr. Gonzalez] as being about 5’5” in height, correct? A. Yes. Q. Fair to say that [Appellant] is significantly taller than that, correct? A. No, she said that two males that chased [Mr. Gonzalez] were about 5’5”. She said that the male that pushed him off the bike was six-feet tall. Q. I am just establishing for the record that [Appellant] is well over six-feet tall, correct? A. Yes.

Id. at 17-22. Detective Hagy confirmed that the police were unsuccessful in

retrieving video of the robbery. Id. at 23.

Based on the aforementioned, the suppression court denied Appellant’s

motion to suppress the physical evidence seized by the police. Specifically,

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the suppression court concluded Officer Bennis had probable cause to arrest

Appellant and properly search Appellant’s person incident to the arrest. On

November 27, 2017, Appellant proceeded to a bench trial at which Officer

Bennis was the sole witness. At the conclusion of the trial, the trial court

convicted Appellant of the offenses indicated supra, and on April 6, 2018, the

trial court sentenced Appellant to an aggregate of four years to eight years in

prison, to be followed by five years of probation. This timely, counseled appeal

followed, and all Pa.R.A.P. 1925 requirements have been met.

On appeal, Appellant presents the following issue in his “Statement of

the Questions Involved” (verbatim):

I. Did not the lower court err by denying appellant’s motion to suppress physical evidence where the police officer who seized appellant and arrested him did not himself have independent reasonable suspicion or probable cause sufficient to detain and arrest, but did so based upon information supplied by a detective who himself did not have reasonably trustworthy evidence supporting the claim that appellant had been involved in a robbery?

Appellant’s Brief at 3.

We consider Appellant’s question mindful of the following:

An appellate court’s 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, the appellate court is bound by those findings and may reverse only if the court’s legal conclusions are

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erroneous. Where…the appeal of the determination of the suppression court turns on allegations of legal error, 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 [legal conclusions of the suppression court] are subject to plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (brackets

and citation omitted).

On appeal, in the argument portion of his brief, Appellant concedes that

Officer Bennis was permitted to make a warrantless arrest of Appellant, and

search him incident to the arrest, if Detective Hagy had probable cause to

arrest Appellant. Appellant’s Brief at 11-12, 15-16 (citing Commonwealth

v. Yong, 644 Pa. 613, 177 A.3d 876 (2018) (holding that where there is

evidence two officers are working as a team, and one of them has probable

cause to stop or arrest an individual, that knowledge can be imputed to the

officer who makes the arrest, even without evidence that it was actually

conveyed); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972)

(holding the collective knowledge doctrine dictates that an officer making a

warrantless arrest based on orders from a superior officer need not have

probable cause so long as the superior officer had probable cause for the

arrest)). That is, Appellant concedes that Officer Bennis was permitted to rely

on the information known by Detective Hagy in effectuating the arrest of

Appellant without himself independently viewing criminal activity. See

Appellant’s Brief at 11-12, 15-16.

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However, Appellant contends Detective Hagy had no such probable

cause to arrest Appellant. In this vein, Appellant avers the information

obtained by Detective Hagy from Mr. Carroll and Ms. Gomez was “not

reasonably trustworthy” since they had an obvious “corrupt motive” in

identifying Appellant as one of the robbers (i.e., Mr. Carroll was identified as

one of the perpetrators by the victim and Ms. Gomez was allegedly in a

romantic relationship with Mr. Carroll). See id. Assuming, arguendo, that

Officer Bennis subjected Appellant to a custodial detention when he stepped

in front of Appellant’s bicycle, maintained a hold on Appellant, and handcuffed

him, we agree with the trial court that the custodial detention was supported

by the necessary probable cause. See Commonwealth v. Thompson, 604

Pa. 198, 985 A.2d 928 (2009) (holding law enforcement officers must have

probable cause to conduct an arrest).

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 man 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.

Thompson, 604 Pa. at 931, 985 A.2d at 931 (citations, quotations, and

quotation marks omitted). “Probable cause does not require certainty, but

rather exists when criminality is one reasonable inference, not necessarily

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even the most reasonable inference.” Commonwealth v. Spieler, 887 A.2d

1271, 1275 (Pa.Super. 2005).

Here, in concluding probable cause existed to arrest Appellant, the

suppression court relevantly indicated the following:

[T]he Commonwealth established that[,] following the robbery of John Gonzalez, police apprehended Reginald Carroll. [Mr.] Gonzalez accused [Mr.] Carroll of participating in the robbery. Police also interviewed Anna Gomez, who told police that Appellant participated in the robbery. Both [Mr. Carroll and Ms. Gomez] selected photographs of Appellant [from a photo array]. This information was sufficient to establish probable cause regardless of any alleged relationship and [Mr.] Carroll’s purported involvement in the robbery. With respect to Anna Gomez, the Courts of this Commonwealth have recognized that a citizen informer, identified eyewitness[,] or ordinary citizen reporting his or her observations of a crime stands on a different ground than a police informer. See Commonwealth v. Weidenmoyer, 518 Pa. 2, 9, 539 A.2d 1291, 1295 (1988) (“It may be fairly stated that where an informant is not a paid, unknown tipster but instead an identified eyewitness to a crime who voluntarily reports observations to the police, the trustworthiness of such a person may be presumed.”); Commonwealth v. Lyons, [622 Pa. 91, 112,] 79 A.3d 1053, 1064-65 (2013) (“This Court has repeatedly rejected the argument that an officer relying on statements from an ordinary citizen, in contrast to a police informant, must establish the citizen’s credibility and reliability.”). Indeed, as [the appellate court] has held, such citizen reports are “particularly compelling” because “[m]embers of a particular neighborhood are uniquely well-qualified to observe what is going on in their community, and should be supported in reporting [criminal] activity to the police.” Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa.Super. 1992). Thus, based solely on the information received from Anna Gomez, police had probable cause to arrest Appellant. Nevertheless, they had additional information, namely, the information from an alleged accomplice to the robbery. The law is clear that uncorroborated information from an accomplice establishes probable cause to arrest. Commonwealth v.

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Stokes, [480 Pa. 38,] 389 A.2d 74, 76 (1978) ([holding] it is well settled that the uncorroborated confession of an accomplice which implicates the suspect will supply the probable cause for an arrest warrant). In numerous cases, information of the kind introduced during the suppression hearing herein has been deemed sufficient to sustain an order denying a motion to suppress. See Commonwealth v. Bryant, 503 A.2d 39 (Pa.Super. 1986) ([holding] probable cause to arrest [the] defendant for robbery of bar where suspect in different robbery told police that [the] defendant’s accomplice had admitted [to the] robbery of [the] bar); Commonwealth v. Rutigliano, 456 A.2d 654 (Pa.Super. 1983) (where a neighbor volunteered information about identity of burglar, probable cause to arrest [the] defendant [was] established, and there was no need to establish [the] neighbor’s credibility). Accordingly, for the reasons stated,…the [suppression] court find[s] Appellant’s [suppression] claim lacking in merit because the police certainly had sufficient information to establish probable cause to arrest Appellant.

Suppression Court Opinion, filed 12/6/18, at 6- 8 (some citations omitted).

We conclude the suppression court’s factual findings are supported by

the record, and we agree with the suppression court’s sound analysis. Smith,

supra. “While the [police] must have a reasonable belief in the probability of

criminal activity by the person to be arrested, the belief may rest solely in

information supplied by another person where there is a ‘substantial basis’ for

crediting that information.” Rutigliano, 456 A.2d at 657 (quotation marks

and quotation omitted). Here, the police had a “substantial basis” for crediting

the information provided by Ms. Gomez, whose trustworthiness as an

identified civilian witness may be presumed, as well as the information

provided by Mr. Carroll, an alleged accomplice of Appellant. See

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Commonwealth v. Harris, 176 A.3d 1009, 1017 (Pa.Super. 2017) (noting

“that information provided by certain classes of persons may be sufficient to

establish probable cause: the uncorroborated confession of an accomplice, or

the statement of a victim, or an eyewitness whose identity is known.”)

(citation omitted)).

Moreover, we note that we are not persuaded by Appellant’s argument

that the information provided by Ms. Gomez and Mr. Carroll should be deemed

“inherently untrustworthy” since there were discrepancies between their

statements of events as compared to Mr. Gonzalez’s statement of events. See

Appellant’s Brief at 14-15. As indicated supra, probable cause does not

require certainty, but rather a reasonable inference. See Spieler, supra.

Here, the suppression court did not err in concluding that, under the totality

of the circumstances, a reasonable inference that Appellant committed the

crime existed so as to establish probable cause to arrest him.5 See

Thompson, supra.

For all of the foregoing reasons, we affirm.

Affirmed.

5 Having concluded the police had probable cause to arrest Appellant, we note

Appellant was properly searched incident to his arrest. See Commonwealth v. Simonson, 148 A.3d 792 (Pa.Super. 2016) (explaining “search incident to arrest” exception).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/3/19

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