Com. v. Harter, S.

• Court: Superior Court of Pennsylvania
• Decided: February 10, 2015
• Docket: 2067 MDA 2013
• Status: Unpublished

Opinion

J-A34027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SELBY SHADE HARTER, : : Appellant : No. 2067 MDA 2013

Appeal from the Judgment of Sentence Entered October 22, 2013, In the Court of Common Pleas of Cumberland County, Criminal Division, at No. CP-21-CR-0002350-2012.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2015

Appellant, Selby Shade Harter, appeals from the judgment of sentence

entered following his convictions of possession of marijuana with intent to

deliver and possession of drug paraphernalia. We affirm.

We summarize the history of this case as follows. At 1:00 a.m. on July

3, 2012, a police officer entered the gravel parking lot of Susquehanna

Sports Center, which serves as a parking area for multiple businesses, all of

which were closed at the hour. Upon entering the area, the officer observed

two young males in the parking lot. When they saw the patrol car, the

males turned and ran away. The officer exited his vehicle and observed a

third young male. Due to an 11:00 p.m. curfew in effect, the officer

detained the third male, who was seventeen years old. As the officer was J-A34027-14

placing the third male into his patrol car, he noticed Appellant, being the

fourth male in the area, walking across the parking lot at the “edge of the

darkness.” The officer asked Appellant what he was doing, and Appellant

replied, “nothing,” and that he “was just walking home.” The officer noticed

a large sum of money protruding out of Appellant’s right front pocket and a

bulge in that area of his pants.1 The officer also observed that Appellant had

been carrying a nylon drawstring backpack, which he took off, placed on the

ground, and abandoned. The officer heard a “jingling” sound when Appellant

placed the backpack on the ground.

After conducting a pat-down search of Appellant, the officer asked

Appellant what was in the backpack. Appellant responded that the officer

had “no right to go inside it.” With the aid of his flashlight, the officer then

looked inside of the open top of the backpack and observed a mason jar

containing a green leafy substance. The officer then handcuffed Appellant.

Other officers who arrived at the scene discovered a Dodge Intrepid parked

in the parking lot. The vehicle was registered to Appellant’s mother. There

was cash on the roof of the car and mason jars visible inside of the vehicle.

Police then obtained search warrants for the car and the backpack. In the

backpack were two empty mason jars, a third mason jar containing four

baggies of marijuana weighing 32.57 grams, and a digital scale. In the

1 Appellant had over $1,000.00 in United States currency on his person.

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vehicle were two empty mason jars, zipper-seal storage baggies, a weight

used to calibrate scales, and the box from the scale that was discovered in

the backpack. Appellant was then taken into custody.

In a criminal information filed on October 31, 2012, Appellant was

charged with possession of marijuana with intent to deliver and possession

of drug paraphernalia. On December 7, 2012, Appellant filed a pretrial

motion seeking to suppress all evidence. On January 24, 2013, the trial

court held a hearing on the motion to suppress. The trial court denied

Appellant’s motion on April 4, 2013. On August 8, 2013, after a nonjury

trial, Appellant was convicted of the crimes stated above. On October 22,

2013, the trial court sentenced Appellant to serve a term of probation of

twenty-four months for the conviction of possession of marijuana with intent

to deliver. For Appellant’s conviction of possession of drug paraphernalia,

the trial court sentenced Appellant to pay the costs of prosecution. This

timely appeal followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

Appellant now raises the following issue for our review:

A. Whether the Commonwealth presented sufficient evidence to substantiate a finding of guilt beyond a reasonable doubt on the charges, did the police have sufficient reasonable articulable suspicion to justify [Appellant’s] detention, and conduct a Terry search for weapons, did the officer possess valid probable cause to arrest the defendant and search his property?

Appellant’s Brief at 10 (full capitalization omitted).

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Appellant fails to present any substantive argument relating to the

sufficiency of the evidence. Rather, Appellant argues that the trial court

erred in failing to grant his motion to suppress the evidence. Appellant’s

Brief at 12-15. Essentially, Appellant claims that the police officer lacked

reasonable suspicion to subject Appellant to an investigative detention, and

consequently, all evidence should have been suppressed.

The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. An appellate court

may consider only the Commonwealth’s evidence and so much of the

evidence for the defense as remains uncontradicted when read in the

context of the record as a whole. Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d

75 (Pa. 2004)). Where the record supports the factual findings of the trial

court, the appellate court is bound by those facts and may reverse only if

the legal conclusions drawn therefrom are in error. Id. However, it is also

well settled that the appellate court is not bound by the suppression court’s

conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455

(Pa. 2003)).

With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings.

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Only factual findings which are supported by the record are binding upon this court.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted). In addition, questions of the admission and exclusion of

evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion. Commonwealth v.

Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

Further, we are aware that Pennsylvania Rule of Criminal Procedure

581, which addresses the suppression of evidence, provides in relevant part,

as follows:

(H) The Commonwealth shall have the burden . . . of establishing that the challenged evidence was not obtained in violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

Both the United States and Pennsylvania Constitutions prohibit

“unreasonable searches and seizures.” U.S. Const. Amendment IV;

Pennsylvania Const. Art. 1, § 8.

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the “right of each individual to be let alone.” Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

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To secure the right of citizens to be free from intrusions by police,

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as

those interactions become more intrusive. Commonwealth v. Beasley,

761 A.2d 621, 624 (Pa. Super. 2000).

It is undisputed that:

[s]tate case law recognizes three categories of interaction between police officers and citizens, which include: (1) a mere encounter, or request for information, which need not be supported by any level of suspicion, but which carries no official compulsion to stop or to respond; (2) an investigative detention, which must be supported by reasonable suspicion as 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; and (3) arrest or custodial detention, which must be supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc). Thus, as the first level of interaction between police and citizens, a

mere encounter is itself a “request for information,” which needs no level of

suspicion. Id.

As we explained in Commonwealth v. Jones, 874 A.2d 108 (Pa.

Super. 2005):

A mere encounter can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it carries no official compulsion to stop or respond.

Id. at 116 (quoting Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.

Super. 2000)).

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If the police action becomes too intrusive, a mere encounter may

escalate into an investigatory stop or a seizure. Commonwealth v.

Boswell, 721 A.2d 336, 340 (Pa. 1998). To effectuate an investigative

detention, the officers are required to have reasonable suspicion that

unlawful activity was in progress. In order to demonstrate reasonable

suspicion, the police must be able to point to specific facts and reasonable

inferences drawn from those facts in light of the officer’s experience.

Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999).

“Because the level of intrusion into a person’s liberty may change

during the course of the encounter, we must carefully scrutinize the record

for any evidence of such changes.” Commonwealth v. Blair, 860 A.2d

567, 572 (Pa. Super. 2004) (citing Commonwealth v. Strickler, 757 A.2d

884 (Pa. 2000)). In determining whether a mere encounter has risen to the

level of an investigative detention, our inquiry focuses on whether the

individual in question has been seized.

To guide the crucial inquiry as to whether or not a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether, in the view of all surrounding circumstances, a reasonable person would believe that he was free to leave. In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject’s movement has in some way been restrained. In making this determination, courts must apply the totality-of-the- circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.

Strickler, 757 A.2d at 889-890 (citations omitted).

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Our Supreme Court has explained that the pursuit of an individual by

police officers amounts to a seizure, and thus, the officer must demonstrate

either probable cause to make the seizure or reasonable suspicion to stop

and frisk. In the Interest of D.M., 781 A.2d 1161, 1164 (Pa. 2001) (citing

Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996)). In addition, our

Supreme Court has reiterated that unprovoked flight in a high crime area is

sufficient to create a reasonable suspicion to justify a stop by police. Id.

Because our review of the record reflects that the police officer in this

case did possess the requisite reasonable suspicion when he approached and

stopped Appellant, we agree with the suppression court’s determination.

Officer Timothy Rine of the West Shore Regional Police Department in

Lemoyne, Pennsylvania, and member of the Cumberland County Drug Task

Force, testified that on July 3, 2012, he was patrolling in full uniform in a

marked police vehicle. N.T., 1/24/13, at 4. Officer Rine stated that the

location he was patrolling was a high crime area based upon a high number

of residential and business burglaries and car break-ins. Id. at 5-6. Officer

Rine explained that at approximately 1:00 a.m., he entered a business

parking lot and witnessed two young males running away as soon as they

saw the officer approach. Id. at 8. Officer Rine stated that he then stopped

his vehicle, exited, and encountered a third young male, who was seventeen

years old, in the parking lot. Id. at 9. The officer explained that the area

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had a curfew of 11:00 p.m. Id. at 11. As he placed the underage male into

the patrol vehicle, the officer observed Appellant, who was the fourth young

male in the area, walking through the parking lot carrying a drawstring

backpack. Id. at 11-12.

In addition, Officer Rine explained that as he approached Appellant, he

observed Appellant lay the backpack onto the ground and walk away. Id. at

12. The officer indicated that the contents of the bag made a “jingling”

sound. Id. at 13. With regard to what transpired next, Officer Rine offered

the following testimony:

I asked him what’s in the bag. And at first, he said something to the effect of it’s not mine. I don’t know. And I started walking over to it; and then [Appellant] said, well, you can’t look in that.

Id. In addition, Officer Rine explained that without manipulating the bag, he

was able to see into the opening of the backpack with his flashlight and

observed several mason jars, one of which contained a green leafy

substance. Id. at 13-14. Furthermore, the officer explained that he had

witnessed a large bulge of money protruding from Appellant’s pants pocket.

Id. at 15. Officer Rine stated that he presumed that he had come across a

drug deal. Id.

The totality of these facts, in light of the knowledge of the officer at

the time, was sufficient to establish reasonable suspicion of criminal activity

necessary to stop Appellant. Thus, because the police officer articulated

facts at the suppression hearing that would give rise to a reasonable

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suspicion of criminal activity afoot, we conclude that the stop of Appellant

was lawful, and that the suppression court properly held the evidence should

not be suppressed. Therefore, we conclude that Appellant’s contrary claim

lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/10/2015

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