J-S45011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RAHMAIRE HAYES,
Appellant No. 696 EDA 2017
Appeal from the Judgment of Sentence Entered September 26, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004174-2015
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 25, 2019
Appellant, Rahmaire Hayes, appeals from the judgment of sentence of
4 to 8 years’ incarceration, followed by 4 years’ probation, imposed after he
was convicted of robbery, aggravated assault, and related offenses. Appellant
challenges the court’s denial of his pretrial motion to suppress evidence, as
well as the sufficiency of the evidence to sustain his aggravated assault
conviction. After careful review, we vacate Appellant’s judgment of sentence
and remand for a new trial.
The trial court summarized the facts of this case, as follows: Early on December 20[], 2014[,] Complainant, Eric Walsh, was walking to the Market-Frankford SEPTA line after work. Notes of Testimony (“N.T.”), 07/21/2016, at 13-15. Per his job duties as a beverage sales representative, he visited four or five bars and ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S45011-19
had a single cocktail at each location. Id. at 13-14[,] 33. Near the 1700 block of JFK Boulevard[,] Appellant approached and engaged Complainant in a conversation requesting subway tokens. Id. at 15-16. The two walked for a short distance and Complainant stopped to give Appellant a subway token. Complainant turned away and Appellant physically attacked him, causing him to black out. Id. at 17-18. When the Complainant regained consciousness, his belongings were gone, and he [had] sustained injuries, including cuts on his ears and a laceration on the back of his head. Id. at 18-21. Complainant’s missing items included cash, a cellular phone, his wallet containing debit and credit cards, photos, social security card, driver’s license, and a Breitling watch. Id. Complainant was transported to Hahnemann Hospital via ambulance, where he received a tetanus shot, a CT scan, and was placed on concussion protocol. Id. Once released from the hospital, Complainant reported his effects missing. Id. at 24. Several unauthorized transactions were noted, all occurring on [December 20, 2014], at various 7-Eleven and Wawa locations within several blocks of the incident at 1700 JFK Boulevard. The total of all transactions came to $670.80[,] as noted in the police report following Appellant’s arrest.
A video was later published on the Philadelphia Police Department’s … YouTube page, depicting unidentified individuals at several convenience store locations where the card was used; the Philadelphia Police Department requested information on the people in the video. Notes of Motion Testimony (“N.M.T.”), 03/21/2016, at 7-8. SEPTA Officer [Derrick] Gordon saw the video on January 8th, 2015[,] and later that day he saw and recognized Appellant from the video and placed him in an investigatory detention for identification purposes. Id. Officer Gordon contacted Philadelphia Police and spoke with the lead investigator, Detective [Anthony] Anderson, who requested Appellant be brought to Central Detectives for identification purposes. Id. With Appellant unable to present any personal ID, Officer Gordon handcuffed Appellant and placed him in the vehicle to be brought to Detective Anderson. Id. Appellant was interviewed and released. A warrant for his arrest was later issued on January 27[, 2015]. Id. at 18. Appellant was arrested on March 12[,] 2015.
Trial Court Opinion (TCO), 11/14/18, at 2-3.
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Appellant was charged with single counts of robbery, 18 Pa.C.S. §
3701(a)(1)(ii); aggravated assault, 18 Pa.C.S. § 2702 (a); conspiracy, 18
Pa.C.S. § 903; theft by unlawful taking, 18 Pa.C.S. § 3921(a); receiving stolen
property, 18 Pa.C.S. § 3925(a); simple assault, 18 Pa.C.S. § 2701(a); and
recklessly endangering another person, 18 Pa.C.S. § 2705. He was also
charged with six counts of forgery, 18 Pa.C.S. § 4101(a)(1), and seven counts
of access device fraud, 18 Pa.C.S. § 4106(a)(1).
Prior to trial, Appellant filed a motion to suppress the statement he
provided to police during the interview on January 8, 2015. Appellant
contended, inter alia, that Officer Gordon had arrested him without probable
cause and, thus, his statement given just after that illegal arrest must be
suppressed as ‘fruit of the poisonous tree.’ On March 21, 2016, a suppression
hearing was conducted, at which Officer Gordon was the sole witness. At the
close of the hearing, the court found that the officer possessed probable cause
to support the arrest, and it denied Appellant’s suppression motion.
Appellant proceeded to a non-jury trial, at the close of which the court
granted his motion for judgment of acquittal regarding his six counts of
forgery, but convicted him of the remaining fourteen charges. On September
26, 2016, Appellant was sentenced to the aggregate term set forth supra. He
filed a timely post-sentence motion, which was denied by operation of law on
January 27, 2017. Appellant then filed a timely notice of appeal, and he also
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
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statement of errors complained of on appeal. The court filed its Rule 1925(a)
opinion on November 14, 2018.
On appeal, Appellant states three issues for our review, which we have
reordered for ease of disposition:
1. Is the evidence insufficient to sustain a conviction of [a]ggravated [a]ssault where Appellant did not intend to cause serious bodily injury and there was no serious bodily injury inflicted?
2. Did the trial court err by denying Appellant’s [m]otion to [s]uppress where Appellant’s statement was the fruit of an illegal arrest not supported by probable cause?
3. Did the trial court err by denying Appellant’s [m]otion to [s]uppress where Appellant’s statement was the fruit of an illegal arrest as the arresting officer lacked authority to arrest Appellant?
Appellant’s Brief at 5.
In assessing Appellant’s first issue, we begin by setting forth our
standard of review of a challenge to the sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Appellant challenges only his conviction for aggravated assault. “A
person is guilty of aggravated assault if he … attempts to cause serious bodily
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injury to another, or causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to the value of human
life….” 18 Pa.C.S. § 2702(a)(1). “Serious bodily injury” is defined as “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S. § 2301.
Here, Appellant claims that he did not intend to cause, nor did he
actually cause, serious bodily injury to the victim. In disagreeing with this
claim, the trial court reasoned:
Complainant lost consciousness and when he came-to, [he] had an inch-long laceration on the back of his scalp, as well as a split ear lobe and swollen jaw and glands. As seen in multiple cases, loss of consciousness can contribute to a finding of serious bodily harm. Further, EMTs noted slurred speech and an unsteady gait upon arrival in the ambulance. Complainant was given a tetanus shot, a CT scan, and placed on concussion protocol due to his loss of consciousness. According to his testimony, he continues to suffer from memory loss and headaches as a result of the incident. Under the statute and case law, Complainant suffered serious bodily injury at the hands of Appellant. Appellant’s argument of insufficient evidence is without merit.
TCO at 9-10.
We agree with the court’s conclusion. Notably, the victim lost
consciousness due to the severity of Appellant’s attack. Additionally, although
the victim testified that his memory loss and continuing headaches are minor,
see N.T. Trial at 30, his testimony that he suffers from these issues was
sufficient to establish ‘protracted loss or impairment of the function’ of his
brain. Therefore, the evidence was sufficient to prove Appellant inflicted
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serious bodily injury on the victim that constituted aggravated assault. See
Commonwealth v. Kinney, 157 A.3d 968, 973 (Pa. Super. 2017) (upholding
Kinney’s conviction for aggravated assault where he repeatedly struck and
kicked the victim in the head, knocking the victim unconscious and resulting
in four of the victim’s teeth falling out and swelling of his eye and lips).
In Appellant’s next issue, he challenges the court’s denial of his pretrial
motion to suppress. According to Appellant, Officer Gordon lacked probable
cause to arrest him without a warrant, and the statement he provided to police
was fruit of that illegal arrest. Appellant stresses that,
[Officer Gordon] admitted that [Appellant] was not doing anything at all illegal, and the only reason he arrested [Appellant] was for identification purposes. Specifically, Officer Gordon had seen a Philadelphia Police video, pertaining to a robbery, in which he recognized [Appellant]. However, the video did not depict any footage of the robbery but showed men inside [convenience] stores and a narrative that requested their identity. Officer Gordon had no knowledge of the robbery and whether [Appellant] was involved. Thus, Officer Gordon did not have probable cause that [Appellant] committed a crime, and the ensuing arrest was illegal.
Appellant’s Brief at 11 (citations to the record omitted).
For the reasons stated infra, we agree with Appellant. Preliminarily, we
note: 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
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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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (internal
brackets omitted).
In reviewing the specific arguments presented by Appellant, we are
guided by the following:
In order to be constitutionally valid under the Fourth Amendment to the United States Constitution, a warrantless arrest must be supported by probable cause. Where probable cause to arrest does not exist in the first instance, any evidence seized in a search incident to arrest must be suppressed. It is well settled that in determining whether probable cause exists to justify a warrantless arrest, the totality of the circumstances must be considered.
***
Under the totality of the circumstances test, as refined by more recent cases, probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Mere suspicion is not a substitute for probable cause. The totality of the circumstances test dictates that we consider all the relevant facts, when deciding whether the warrantless arrest was justified by probable cause.
In Interest of O.A., 717 A.2d 490, 495 (Pa. 1998) (internal citations
omitted).
Here, at the close of the suppression hearing, the trial court made the
following findings of fact, which are supported by the suppression hearing
testimony of Officer Gordon, and are not objected to by either party on appeal:
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THE COURT: Officer Derrick Gordon, who is a SEPTA police officer, presently working with the K-9 Unit who has nine years of experience with the SEPTA police, who has also worked plain clothes and tactical, testified that he was personally familiar with [Appellant] in this case and had contact with him numerous times. He emphasized he was very familiar with [Appellant] and [Appellant] … had issued, or rather the officer, had issued citations to [Appellant] on numerous occasions.
On the morning of January 8th, Officer Gordon testified that he reviewed a You[T]ube video that he saw from the Philadelphia Police Department that depicted suspects of a couple of robberies.[1] He watched this video and --
MR. DIMUZIO: Your Honor, can I be clear? It wasn’t a couple. It was one robbery. Those were videos of people entering the store. None of those stores were robbed.
THE COURT: Well, okay. But the videos depicted suspects --
MR. DIMUZIO: Correct.
THE COURT: -- who were wanted for robberies.
MR. DIMUZIO: One robbery.
THE COURT: Or a robbery. The suspects who were seen on this You[T]ube video were shown. Officer Gordon testified that he himself identified one of the suspects as [Appellant].
____________________________________________
1 We note that the video was entered into evidence by the Commonwealth at the suppression hearing and viewed by the trial court, but it is not contained in the certified record. Consequently, the Commonwealth argues that we should deny Appellant relief because “[i]t was, of course, [his] burden as the appellant to provide this Court with a complete record.” Commonwealth’s Brief at 7 (citing, inter alia, Commonwealth v. Spotti, 94 A.3d 367, 381 (Pa. Super. 2014)). We decline to deny Appellant relief because he failed to produce for this Court a Commonwealth’s exhibit that the Commonwealth admits it cannot even locate. See Commonwealth’s Brief at 7 (“That video is not part of the certified record on appeal — nor has the Commonwealth been able to locate a copy of it.”). Reaching this result would invite the Commonwealth to lose or destroy pertinent exhibits in order to prevent appellate relief for criminal defendants.
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On January 8[], 2015, while on duty, he saw [Appellant] … and stopped him because of the video he saw, the You[T]ube video. [Appellant] did not have any identification on him. [Officer Gordon] contacted the investigating detective and took [Appellant] to Central Detectives for possible ID pertaining to this robbery. None of the video clips depicted an actual robbery at the time. When he, [Appellant], was stopped, he was not doing anything illegal.
MR. HOWELL: May I clarify one thing on that? It didn’t depict a robbery, but it had a narrative.
THE COURT: It did. The video did provide a narrative indicating the robbery that occurred and that the individuals in the video were involved. After bringing [Appellant] to Central Detectives, he was properly Mirandized[2], as stipulated by both counsel, and a statement was given. A statement was also taken [from] … Police Officer Gordon as well.
The [c]ourt finds that probable cause existed for the following factors: Officer Gordon testified credibly that he was very familiar with [Appellant]. He reviewed the video and believed the individual depicted in the video to be [Appellant].
While the questioning and cross-examination brought the issue of identification, at no point did the testimony of Officer Gordon question the identification of [Appellant], but [Appellant] was being brought in for possible identification by the detectives as the individual, or confirmation as the individual, in the video.
This is no different than matching flash information, except that the flash information is actually pictured and available for comparison. So[,] the [c]ourt finds there was probable cause to stop and detain [Appellant]. The motion to suppress is denied.
N.T. Suppression Hearing at 33-37 (emphasis in original).
Initially, we note that the court concludes in its Rule 1925(a) opinion,
and neither party disputes, that Appellant was effectively arrested by Officer
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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Gordon when the officer handcuffed, searched, and then transported Appellant
to the police station. See id. at 8, 15 (Officer Gordon’s testifying he
handcuffed, searched, and transported Appellant to the police station).
Clearly, Officer Gordon’s actions constituted an arrest, as he subjected
Appellant to his will and control. See Commonwealth v. Hannon, 837 A.2d
551, 554 (Pa. Super. 2003) (“Arrest is an act that indicates an intention to
take a person into custody or that subjects the person to the will and control
of the person making the arrest.”) (citation and emphasis omitted).
Because Officer Gordon arrested Appellant, and did so without a
warrant, we must next assess whether he had probable cause to do so. See
id.
Probable cause is determined by considering the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under the totality of the circumstances, a police officer must make a practical common sense decision whether, given all of the circumstances known to him at that time, including hearsay information, there is a fair probability that a crime was committed and that the suspect committed the crime.
Id. at 554–55 (one internal citation omitted).
Interestingly, in its Rule 1925(a) opinion, the trial court changes its
position and concludes that “[t]he record as it stands does not support a
finding of probable cause, as there was no crime occurring at the time of the
interaction, nor in the videos placed on the [Philadelphia Police Department’s]
YouTube page….” TCO at 5. In response, the Commonwealth counters that
the officer had probable cause to arrest because “[Appellant] was caught on
video entering a series of convenience stores at the same time that the
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victim’s bank card was used without his authorization to withdraw money from
his account[,]” which “included instances in which hundreds of dollars were
withdrawn shortly after two o’clock in the morning, less than twenty minutes
after and only blocks away from the scene of the robbery.” Commonwealth’s
Brief at 8.
However, the facts cited by the Commonwealth were established during
Appellant’s trial, through the testimony of the victim and Detective Anderson.
See id. (citing N.T. Trial at 26-29, 72-73). Our Supreme Court has held that
appellate courts may not look “beyond the evidentiary record presented at the
pre-trial hearing in examining a denial of suppression….” In re L.J., 79 A.3d
1073, 1087 (Pa. 2013).
Limiting our review to the suppression record, we agree with the trial
court that Officer Gordon did not have probable cause to arrest Appellant.
Officer Gordon acknowledged at the suppression hearing that he was not
involved in the initial investigation of the robbery. N.T. Suppression Hearing
at 12. Thus, he had no knowledge of the facts and circumstances of the crime
that would lead him to reasonably conclude that Appellant had committed the
offense.
Instead, the officer had merely observed a video of Appellant and a
cohort “entering a store[,]” id., and learned from a narrative on the video that
Appellant was a suspect in a robbery. Thus, as the trial court observed at the
suppression hearing, Officer Gordon essentially received information akin to a
police bulletin. This Court has stated:
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[A] police officer may rely upon information which is broadcast over a police radio in order to justify an investigatory stop and subsequent arrest where the Commonwealth can establish either (1) that probable cause existed for issuing the bulletin or (2) that new information disclosed during the stop gave rise to probable cause for arrest.
Commonwealth v. Prengle, 437 A.2d 992, 994 (Pa. Super. 1981) (emphasis
added). In this case, the Commonwealth presented no evidence to
demonstrate that probable cause existed for issuing the bulletin, i.e., the
YouTube video. Notably, the lead investigator in the case, Detective
Anderson, was not called as a witness at the suppression hearing to explain
what information he knew prior to releasing the video that led him to deem
Appellant a suspect in the robbery. Therefore, the Commonwealth failed to
establish that the detective possessed probable cause to issue the bulletin on
which Officer Gordon premised Appellant’s arrest. Consequently, we conclude
that Appellant’s arrest was not supported by probable cause and was,
therefore, illegal.
Having concluded Appellant’s arrest was illegal, “the question remains
whether or not the statements and evidence obtained subsequent to that
illegal arrest were so far removed from that illegal arrest as to vitiate any taint
arising from the initial illegal arrest.” Commonwealth v. Brooks, 364 A.2d
652, 657 (Pa. 1976) (citing Wong Sun v. United States, 371 U.S. 471
(1963)). The trial court concluded, in its Rule 1925(a) opinion, that
Appellant’s statement was sufficiently cleansed of the taint from his illegal
arrest because the police did not use coercive tactics in interviewing Appellant,
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he was provided Miranda warnings, and he knowingly, intelligently, and
voluntarily waived his rights before speaking to police. See TCO at 6-7.
We disagree. In Brooks, our Supreme Court explained:
The test announced by the United States Supreme Court in Wong Sun is:
“whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” [Wong Sun,] 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455.
The challenged evidence may be purged of the taint of the primary illegality only if it results from ‘an intervening independent act of a free will,’ Wong Sun, supra, 371 U.S. at 486, 80 S.Ct. at 416, 9 L.Ed.2d at 454, or if the connection between the arrest and the evidence has ‘become so attenuated as to dissipate the taint.’ Id. at 491, 83 S.Ct. at 419, 9 L.Ed.2d at 457.
Two factors significant to the determination of the relationship between an illegal arrest and subsequent confession have been articulated by the Third Circuit of the United States Court of Appeals in Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3d Cir. 1965), cert. den. 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966). These factors are:
‘(a) the proximity of an initial illegal and custodial act to the procurement of the confession; and
(b) the intervention of other circumstances subsequent to an illegal arrest which provide a cause so unrelated to that initial illegality that the required evidence may not reasonably be said to have been directly derived from, and thereby tainted by, that illegal arrest.’
We note that, having failed to establish the legality of the initial arrest, the prosecution must bear the burden of showing that any evidence obtained subsequent to it has been obtained by means sufficiently distinguishable from the initial illegality so as to be purged of the primary taint rather than having been come by by
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exploitation of that illegality. [In re] Betrand, … 303 A.2d 486 ([Pa.] 1973).
Brooks, 364 A.2d at 657.
In Brooks, the “appellant confessed less than three hours after the
initial illegal arrest” and the only other intervening factor between the arrest
and Brooks’ confession was a polygraph examination taken by Brooks. Id. at
658. Our Supreme Court concluded that these facts were not “sufficient to
break the chain of circumstances between the illegal arrest and the challenged
evidence….” Id.
We agree with Appellant that Brooks controls in this case. See
Appellant’s Brief at 12-13. Here, Officer Gordon illegally arrested Appellant
and transported him to the police station. The Commonwealth offered no
evidence to establish how much time passed between Appellant’s arrival at
the station and his statement to police and, therefore, this factor cannot be
weighed in the Commonwealth’s favor. Additionally, the Commonwealth did
not present evidence of any intervening factor between Appellant’s arrest and
interrogation, except for the providing of his Miranda rights and his waiver
thereof. However, even if that waiver was knowing, intelligent, and voluntary
— and no coercive tactics were employed by the interviewing officers — these
circumstances were not sufficient, in and of themselves, to cleanse Appellant’s
statement from the taint of his illegal arrest. See Brooks, supra; see also
Commonwealth v. Yocham, 375 A.2d 325, 329–30 (Pa. 1977) (“Where the
primary taint results from an illegal arrest and the confession is obtained
through interrogation occurring during the period of custody resulting from
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that arrest we have not been willing to find a dissipation of the taint solely
because proper warnings were given prior to the interrogation. Further, our
decisions have held that the mere absence of evidence of police coercion is
not sufficient to justify the conclusion that the accused’s statement was the
product of free will sufficient to overcome the taint of the unlawful arrest.”).
Accordingly, Appellant’s statement was not admissible, and the trial court
erred by denying his motion to suppress it.3
Consequently, we vacate Appellant’s judgment of sentence and remand
for a new trial.
Judgment of sentence vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/25/19
3 In light of our disposition of Appellant’s second issue, we need not address his third claim that Officer Gordon lacked jurisdiction to arrest him.
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