Com. v. Echevavia, H.

• Court: Superior Court of Pennsylvania
• Decided: July 25, 2017
• Docket: Com. v. Echevavia, H. No. 3001 EDA 2016
• Status: Unpublished

Opinion

J-S38034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.

HARRY ECHEVAVIA

Appellant No. 3001 EDA 2016

Appeal from the Judgment of Sentence August 30, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013153-2015

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 25, 2017

Appellant, Harry Echevavia, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas after he was

found guilty of possession with intent to deliver1 and knowing and intentional

possession.2 Appellant challenges the denial of his motion to suppress

physical evidence. We affirm.

The trial court summarized the facts and procedural posture of this

case as follows:

At the suppression hearing, Philadelphia Police Officer [Joseph] McCauley testified that on November 23, 2015 at 5:10 p.m. he and his partner, Officer [Patrick] Banning, were assigned to an “overtime detail specially to target

* Former Justice specially assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(16). J-S38034-17

open air drug sales” in addition to “part one . . . crimes” which included “shooting, robberies, rapes, burglaries, car thefts [and] stolen autos.” [Officer McCauley] indicated that his tour of duty took him to the 200 block of East Stella Street which is “considered the highest drug area” in Philadelphia. Officer McCauley was not conducting surveillance on [Appellant] on the night in question.

On the night in question, [Officers] McCauley and Banning were patrolling in a stealth marked vehicle with no dome lights and subdued decals. [Officer] McCauley was operating the police vehicle and used a “stealth manner” to turn the wrong way onto Stella Street, a one-way street.

From 40 to 60 feet away, [Officer] McCauley observed [Appellant] engaged in what he believed to be a drug sale. The police vehicle traveled 10 to 15 miles per hour and did not have its headlights illuminated as it traveled down Stella Street.

After [Officer] McCauley observed the suspected drug sale, [Officers] McCauley and Banning immediately exited the vehicle next to [Appellant] and the buyer. [Both officers were in full uniform.] At this point, [Appellant] dropped fourteen blue packets, consistent with heroin packaging, onto the highway. [Officer] McCauley then placed [Appellant] under arrest.

Upon cross examination, [Officer] McCauley reiterated that he was out of the police vehicle when [Appellant] dropped the items to the ground. Further, [Officer] McCauley testified that [Appellant] dropped the packets after he looked in the direction of [Officers] McCauley and Banning.

Trial Ct. Op., 11/9/16, at 2-3 (record citations and footnote omitted).

On February 12, 2016, Appellant filed a motion to suppress, alleging

he was stopped without reasonable suspicion and arrested without probable

cause. Following a hearing on April 29, 2016, the trial court denied the

suppression motion and concluded that Appellant was not seized when he

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abandoned the narcotics. See N.T., 4/29/16, at 61. Appellant immediately

proceeded to a nonjury trial at which he was found guilty of possession and

possession with intent to deliver a controlled substance. On August 30,

2016, the trial court sentenced Appellant to one and one half to three years’

imprisonment for possession with intent to deliver.

Appellant timely appealed and complied with the trial court’s order to

submit a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

The trial court filed a responsive opinion and concluded that “no coercion

took place before [Appellant] voluntarily abandoned the heroin packets, and

the recovery of the abandoned heroin packets constituted sufficient probable

cause to arrest [Appellant].” Trial Ct. Op. at 10. This appeal followed.

Appellant presents the following question for review:

Did not the trial court err in denying the motion to suppress physical evidence discarded by [A]ppellant where it was forcibly abandoned after an illegal stop made without probable cause in conflict with the Pennsylvania and United States Constitutions?

Appellant’s Brief at 3.

Appellant argues he was subject to an investigative detention without

reasonable suspicion when the police officers exited their vehicle next to

him. Appellant asserts a detention arose when “the officers were in uniform

in a marked car, going down the wrong way of a one way street . . . [and]

pulled up directly adjacent to [him].” Id. at 9. Thus, Appellant contends he

abandoned the heroin during an unlawful seizure and that the trial court

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erred in refusing to suppress the physical evidence against him. See id.

(discussing Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996)). We

disagree.

Our standard of review is as follows:

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 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 conclusions of law of the courts below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)

(citation omitted), appeal denied, 135 A.3d 584 (Pa. 2016).

In Pennsylvania, interactions between the police and members of the public are divided into three categories: 1) mere encounters, which are characterized by the fact that the suspect has no official compulsion to stop or respond to the police, and need not be supported by any level of suspicion; 2) investigative detentions, in which suspects are required to stop and submit to a period of detention . . . and must be supported by reasonable suspicion; and 3) arrests, or custodial detentions, which must be supported by probable cause. If a suspect is subjected to an investigative detention that is not supported by reasonable suspicion, and the suspect abandons a piece of evidence

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that is later recovered by the police, that evidence generally ought to be suppressed.

Commonwealth v. Astillero, 39 A.3d 353, 357-58 (Pa. Super. 2012)

(citations omitted).

“To determine if an interaction rises to the level of an investigative

detention . . . the court must examine all the circumstances and determine

whether police action would have made a reasonable person believe he was

not free to go and was subject to the officer’s orders.” Commonwealth v.

Guzman, 44 A.3d 688, 693 (Pa. Super. 2012) (citation and quotation marks

omitted). Factors relevant to this determination include “the threatening

presence of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language or tone

of voice indicating that compliance with the officer’s request might be

compelled.” Commonwealth v. Guess, 53 A.3d 895, 900 (Pa. Super.

2012) (citation omitted).

In Commonwealth v. Byrd, 987 A.2d 786 (Pa. Super. 2009), a

caravan of marked police vehicles drove down the wrong way of a one-way

street and approached the defendant. Id. at 788. The officers drove at a

low speed and did not activate their lights or sirens. Id. An officer in the

second or third vehicle in the caravan was fifty to sixty feet from the

defendant when he observed the defendant discard an item under a parked

car. Id. The officer detained the defendant and recovered a handgun from

underneath the parked car. Id. The trial court granted the defendant’s

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suppression motion, determining that the “caravan of three to four police

cars driving the wrong way down a one-way street . . . is enough of a show

of force to rise to forced abandonment.” Id. at 789 (citation omitted). The

Commonwealth appealed.

The Byrd Court reversed, concluding that the defendant voluntarily

abandoned the handgun during a mere encounter. Id. at 794. The Court

emphasized that there was “no indication that the cruisers’ lights or sirens

were activated[,] and the cruisers were not traveling at high speed.” Id. at

793. Additionally, there was “no evidence that the police showed any

interest in [the defendant] or made any statements to him prior to [the

defendant] discarding the weapon.” Id. (citation omitted).

In Guess, a police detective in plain clothes and an unmarked car was

investigating a report of an attempted burglary at an apartment complex.

Guess, 53 A.3d at 898. While uniformed officers entered the apartment

complex, the detective remained in the parking lot, where he observed the

defendant and another male emerge from between two of the apartment

buildings. Id. The males matched the description of the suspects’ race and

clothes. Id. The detective drove his unmarked vehicle to the defendant,

identified himself as a police officer, and asked the defendant and his cohort

questions about their identities and residence. Id. The detective then got

out of his vehicle and asked to speak with them. Id. During this

interaction, the defendant dropped a credit card, which did not belong to

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him. Id. The detective thereafter patted the defendant down and recovered

further evidence of a burglary. Id. Following his conviction, the defendant

filed a Post Conviction Relief Act3 petition, which asserted, inter alia, that

trial counsel was ineffective for failing to seek suppression of the evidence

against him. Id. at 899. The PCRA court denied the petition, and the

defendant appealed. Id.

The Guess Court affirmed concluding that Appellant’s underlying

suppression claim lacked arguable merit. Id. at 902. Specifically we

concluded that “the initial approach and questioning by [the detective] was a

mere encounter.” Id. at 901. We noted that the detective approached the

defendant alone, he did not verbally command the defendant to stop, and he

did not obstruct the defendant’s movement. Id. We further noted the

absence of any circumstances that would indicate a seizure, such as the

threatening presence of several officers, the display of a weapon, the

physical touching of the citizen, or the use of strong language or tone of

voice. Id. at 900; see also Commonwealth v. Riley, 715 A.2d 1131,

1135-36 (Pa. Super. 1998) (concluding mere encounter occurred where

arresting officer, who wore blue jeans, windbreaker and T-shirt bearing

police emblem and unit name on the back, pulled unmarked vehicle next to

defendant and exited vehicle).

3 42 Pa.C.S. §§ 9541-9546.

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Instantly, the officers drove down the wrong way of a one-way street

towards Appellant. However, this fact did not amount to a detention. See

Byrd, 987 A.2d at 788. Moreover, although the officers pulled their

“stealth-marked” vehicle next to Appellant, they did so without impeding his

movement or issuing a signal for him to stop. See Guess, 53 A.3d at 901;

Byrd, 987 A.2d at 788. Lastly, although the officers exited the vehicle in full

uniform, they did not command Appellant to stop or ask him any questions

before he abandoned the contraband. See Guess, 53 A.3d at 898, 901.

Indeed, there is no indication in the record that the officers spoke to

Appellant before he abandoned the contraband. We conclude that the

totality of the circumstances presented in this case was not as intrusive as

those discussed in Byrd or Guess.4 Therefore, we discern no basis to

disturb the trial court’s conclusion that Appellant abandoned the contraband

during a mere encounter.5 See Jones, 121 A.3d at 526-27.

Judgment of sentence affirmed.

4 Appellant cites no authority for the proposition that the totality of the circumstances of this case constitutes a seizure. 5 In any event, we discern no merit to Appellant’s contention that the officers lacked reasonable suspicion to believe that Appellant had engaged in a narcotics transaction. See Commonwealth v. Thompson, 985 A.2d 928, 936-37 (Pa. 2009) (concluding probable cause existed to arrest defendant after experienced narcotics officer observed exchange of currency for small object and Commonwealth established sufficient nexus between officer’s experience, his observations, and his belief that he witnessed a drug transaction).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/25/2017

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