Com. v. Gergerich, B.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2016
• Docket: 1129 WDA 2015
• Status: Unpublished

Opinion

J-S54006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRUCE GERGERICH,

Appellant No. 1129 WDA 2015

Appeal from the Judgment of Sentence Entered December 19, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013138-2012

BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2016

Appellant, Bruce Gergerich, appeals nunc pro tunc from the judgment

of sentence of 18 to 36 months’ imprisonment, followed by 5 years’

probation, imposed after he was convicted of one count of possession of a

controlled substance, 35 P.S. § 780-113(a)(16), and two counts of

possession with intent to deliver a controlled substance, 35 P.S. § 780-

113(a)(30). Appellant solely challenges the trial court’s denial of his pretrial

motion to suppress evidence. After careful review, we affirm.

Appellant was charged with the above stated offenses in 2012. Prior

to his trial, Appellant filed a motion to suppress drug evidence recovered

from his person after he was stopped and frisked by police. A suppression

hearing was conducted on May 14, 2013, at the close of which the court

denied Appellant’s suppression motion. Appellant’s case immediately J-S54006-16

proceeded to a non-jury trial and the court convicted Appellant of the three

counts with which he was charged. Appellant was initially sentenced on

August 8, 2013, but he was subsequently resentenced on December 19,

2013, to the aggregate term stated supra.

Appellant did not file a post-sentence motion or a direct appeal.

However, on August 26, 2014, he filed a petition under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his

direct appeal rights. The PCRA court granted Appellant’s petition on June

22, 2015, and Appellant filed this nunc pro tunc appeal on July 22, 2015.

Appellant also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the court

filed an opinion on February 11, 2016. Herein, Appellant presents the

following issue for our review:

I. Did the court err when it did not grant the suppression motion when the search and seizure of [Appellant] was illegal and without probable cause in that the police officer, while sitting 100 feet from him, did not witness any illegal activity or that [Appellant] had committed any crimes, in that the police only witnessed two men in a car, shaking hands?

Appellant’s Brief at 4.

It is well-settled that,

[o]ur 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

-2- J-S54006-16

as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these 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 our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012) (citation omitted)).

Briefly, Appellant challenges the legality of his stop by police, as well

as the lawfulness of a pat-down search that was subsequently conducted,

during which narcotics were discovered. After reviewing the record, and for

the reasons stated infra, we disagree with Appellant that his stop or pat-

down were illegal.

At the suppression hearing, the Commonwealth presented the

testimony of Robinson Township Police Officers Jason Dilanni and Noel

Pilewski. Officer Pilewski testified that on July 30, 2012, at approximately

7:40 p.m., he was patrolling an area known to be a “high drug and crime

area.” N.T. Hearing, 5/14/13, at 19. Officer Pilewski was sitting in his

parked vehicle when he observed Appellant coming out of a hotel. Id. The

officer testified that he knew Appellant, and knew that Appellant lived at the

hotel, based on the officer’s previous “encounters where [Appellant had]

overdosed in his hotel room.” Id. at 20. Officer Pilewski watched as

Appellant walked “towards Route 60. He was on his cell phone and [he was]

-3- J-S54006-16

heading … southbound on Route 60.” Id. Officer Pilewski testified that he

called Officer Dilanni, who was also patrolling close by, and advised Officer

Dilanni of his “experience with [Appellant] and what [Officer Pilewski] knew

about [Appellant]….” Id. at 21. Officer Pilewski suggested that Officer

Dilanni “keep an eye” on Appellant. Id.

Officer Dilanni testified that after getting the call from Officer Pilewski,

he spotted Appellant and “watched him for a few moments[,]” after which

the officer saw “a green Grand A[m] pull[] up with two people” inside. Id.

at 12. Appellant “entered the passenger’s side of the vehicle and sat there

for a moment and it appeared some things were exchanged.” Id. Officer

Dilanni elaborated that Appellant and one of the individuals in the car

engaged in “sort of like a handshake but it looked like there was something

being passed.” Id. Appellant then exited the vehicle. Id. Officer Dilanni

testified that he made his observations from “[a]bout 100 feet” away from

the green Grand Am. Id. at 13. Officer Dilanni decided to stop that vehicle.

Id.

Meanwhile, Officer Pilewski saw Appellant walking back towards him.

Id. Just then, Officer Dilanni called Officer Pilewski “and advised [Officer

Pilewski] what he witnessed[,]” and that Officer Dilanni “was stopping the

vehicle.” Id. at 21. Officer Pilewski decided to also stop Appellant. Id. at

22. The officer “advised [Appellant] why he was being stopped and [that the

officer] believed criminal activity had taken place.” Id. Officer Pilewski

testified that Appellant “denied any wrongdoing.” Id. However, when

-4- J-S54006-16

Officer Dilanni stopped the green Grand Am, the driver, Richard Connors,

admitted to Officer Dilanni that “he had pills” and that he had obtained those

drugs from Appellant. Id. at 14. Officer Dilanni “relay[ed] that information

to Officer Pilewski.” Id. at 15.

Officer Pilewski testified that after detaining Appellant for “two or three

minutes[,]” he was notified by Officer Dilanni about Connors’ admission. Id.

at 23. Officer Pilewski then told Appellant that his and Connors’ “stories

weren’t matching up and [informed Appellant about] what [] Connors had

said.” Id. The officer asked Appellant if he could search Appellant’s person.

Id. at 23. Officer Pilewski testified that Appellant consented to the search,

at which point the officer patted-down Appellant’s person. Id. During the

pat-down, the officer found “two pill bottles with [Appellant’s] name for

Vicodin and Percocet.” Id. at 24. The pills were compared to pills that had

been seized from Connors, and they “appeared to be the same pills.” Id. at

24. Appellant was then placed under arrest. Id.

Again, Appellant challenges the legality of Officer Pilewski’s stop,

arguing that it was an investigative detention that was not supported by

reasonable suspicion. See Appellant’s Brief at 15. The trial court agreed

with Appellant that Officer Pilewski’s stop was a detention, and we see no

error in that determination. See Trial Court Opinion (TCO), 2/11/16, at 7.

Notably, at the time of the stop, Officer Pilewski informed Appellant that the

officer “believed criminal activity had taken place.” N.T. Hearing at 22. We

conclude that the officer’s statement was sufficient to express to Appellant

-5- J-S54006-16

“an official compulsion to stop and respond….” Commonwealth v. DeHart,

745 A.2d 633, 636 (Pa. Super. 2000) (citation omitted). Accordingly, we

agree with Appellant, and the trial court, that Officer Pilewski’s stop

constituted an investigative detention.

Therefore, we must next determine whether the trial court correctly

concluded that Officer Pilewski possessed reasonable suspicion to justify that

detention. See DeHart, 745 A.2d at 636 (stating that an investigative

detention “requires ‘reasonable suspicion’ of unlawful activity”) (citation

omitted).

In deciding whether reasonable suspicion exists for an investigatory detention, the fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the intrusion warrant a man of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. Among the factors to be considered in establishing a basis for reasonable suspicion are tips, the reliability of the informants, time, location, and suspicious activity, including flight.

Commonwealth v. Gray, 784 A.2d 137, 142 (Pa. Super. 2001) (internal

citations omitted).

Here, we agree with the trial court that the totality of the

circumstances provided Officer Pilewski with reasonable suspicion that

Appellant was engaging in criminal activity. Namely, Officer Dilanni told

Officer Pilewski that Appellant had entered a vehicle for a brief period of

-6- J-S54006-16

time, during which Officer Dilanni saw Appellant and an occupant of the

vehicle pass something between them. Appellant’s conduct in the vehicle

was especially suspicious given Officer Pilewski’s knowledge of Appellant’s

history of drug use, and the high-drug area in which they were located. We

conclude that the totality of these circumstances justified Officer Pilewski’s

decision to stop Appellant for further investigation. See Commonwealth v.

Frank, 595 A.2d 1258, 1259-60 (Pa. Super. 1991) (finding reasonable

suspicion to justify an investigative detention where officers surveilling an

area known for drug activity saw a known drug dealer get into Frank’s car;

Frank and the dealer drove to another area where they met other men;

Frank exchanged unknown materials with one of the men; and Frank then

drove the drug dealer back to the place where the dealer had entered

Frank’s vehicle, after which Frank drove off).

Additionally, Officer Pilewski’s pat-down of Appellant’s person was not

illegal. The officer had only detained Appellant for “two or three minutes”

before receiving further information from Officer Dilanni that Connor had

admitted to obtaining drugs from Appellant. N.T. Hearing at 23. Officer

Pilewski then asked to search Appellant’s person and Appellant consented.

While Appellant claims that his consent was involuntary, the thrust of his

argument is premised on his claim that he was illegally stopped, which we

reject for the reasons stated supra. Moreover, Appellant misconstrues the

record when he argues that he simply ‘acquiesced’ to Officer Pilewski’s

statement that “he was about to search [Appellant].” Appellant’s Brief at

-7- J-S54006-16

12. Officer Pilewski testified at the suppression hearing that he asked

Appellant if he could search him. N.T. Hearing at 23. The Commonwealth

followed up that testimony by asking the officer, “[d]id you ask him

[whether you could pat him down] or did you tell him?” Id. Officer Pilewski

stated, “I asked him.” Id. According to Officer Pilewski, Appellant “said that

[was] fine,” and told the officer that he did not “have anything on [him] that

[was] not prescribed to [him].” Id. The officer then conducted the pat-

down. Id. Because the stop of Appellant was lawful, and he consented to

the pat-down, it was not illegal.

In any event, we also note that even if Appellant had not consented to

the pat-down, it was still legal. Connor’s admission to Officer Dilanni that

Appellant had given him drugs, which was relayed to Officer Pilewski prior to

the pat-down, provided Officer Pilewski with probable cause to arrest

Appellant. Thus, the officer was justified in searching Appellant. See

Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002) (“[I]n all

cases of lawful arrests, police may fully search the person incident to the

arrest.”) (citations omitted).

For all of these reasons, the trial court did not err in denying

Appellant’s pretrial motion to suppress.

Judgment of sentence affirmed.

-8- J-S54006-16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2016

-9-