Commonwealth v. Bacon

11 Pa. D. & C.5th 77
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedJanuary 14, 2010
Docketno. 187 of 2009, C.R.
StatusPublished

This text of 11 Pa. D. & C.5th 77 (Commonwealth v. Bacon) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bacon, 11 Pa. D. & C.5th 77 (Pa. Super. Ct. 2010).

Opinion

PICCIONE, J,

Before the court for disposition is defendant’s omnibus pretrial motion. Mark Robert Bacon (defendant) is charged with one count of possession of a controlled substance with intent to manufacture or deliver under 35 P.S. §780-113(a)(30), one count of possession of a controlled substance under 35 P.S. §780-113(a)(16), and one count of possession of drug paraphernalia under 35 P.S. §780-113(a)(32).

The charges in this case arise from an incident occurring in the early morning hours of February 15, 2009. Officer Michael McBride of the Ellwood City Borough [79]*79Police Department was patrolling the Fountain Avenue area of Ellwood City, an area with a high level of drug-related criminal activity, when he saw the defendant sitting in front of the Shelby Bar at the intersection of First Street and Fountain Avenue. Officer McBride drove next to and briefly spoke to the defendant, who said he was waiting for a ride. Shortly after resuming his patrol, Officer McBride noticed a white Dodge minivan with only one head light traveling west on Fountain Avenue at approximately 2 a.m. As Officer McBride turned his patrol car around to conduct a traffic stop, the minivan pulled into a parking lot in front of the Shelby Bar. The defendant then walked over to the minivan as Officer McBride pulled in behind it and initiated his overhead lights.

There is a dispute as to whether the defendant ever entered the minivan. Officer McBride maintains that the defendant entered the van while the defendant argues that he remained outside of it. According to Officer McBride, the defendant then exited the minivan while Officer McBride was reporting the license plate number and description of the vehicle. There is also a dispute as to what happened as Officer McBride exited his patrol car and approached the minivan and the defendant. Officer McBride states that the defendant shouted obscenities and accused the officer of harassing him. Officer McBride then ordered the defendant to get back into the minivan. The defendant continued to argue, causing Officer McBride to attempt to pat him down. As soon as Officer McBride touched him, the defendant began throwing his arms in the air and fighting with the officer. Officer McBride then subdued the defendant with an arm [80]*80bar and put him over the police cruiser. The defendant maintains that he attempted to walk away from the minivan as soon as the overhead lights of the patrol car were activated. Officer McBride then ordered the defendant to come back so he could be patted down. The defendant refused, and the officer grabbed him and slammed him onto the police cruiser.

The defendant and Officer McBride both agree that the officer then called for backup and attempted to put handcuffs on the defendant. A frisk was conducted, and a plastic bottle containing five baggies of cocaine was found in the defendant’s front pocket. The defendant was taken to the police station where he was searched before being placed in his cell. The search revealed that the defendant was carrying 4.5 Xanax, 1 Suboxone, 2 broken Suboxone, and 30 milligrams of Roxicodone.

On May 7, 2009, the defendant filed an omnibus pretrial motion, arguing that Officer McBride lacked the reasonable suspicion necessary to justify a search of the defendant because he did not possess articulable and reasonable grounds to suspect the defendant of criminal activity. According to the defendant, all evidence obtained as a result of the search must be suppressed. A hearing on the defendant’s motion was held on October 9, 2009. The parties presented conflicting testimony regarding the circumstances that caused Officer McBride to stop and search the defendant.

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Lindblom, 854 A.2d 604, 605 [81]*81(Pa. Super. 2004). At the conclusion of the hearing, the suppression court judge shall enter findings of fact and conclusions of law as to whether the evidence was lawfully obtained. Pennsylvania Rules of Criminal Procedure Rule 581(1). “It is within the suppression court’s sole province as fact-finder to pass on the credibility of witnesses and the weight to be given their testimony.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003). The suppression court judge is entitled to believe all, part or none of the evidence presented. Commonwealth v. Snell, 811 A.2d 581, 584 (Pa. Super. 2002). “When faced with conflicting testimony, a suppression court, as fact-finder, may pass upon credibility, and these findings will not be disturbed when supported by the record.” Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 696 (1986).

Defense counsel offered the testimony of Natasha Rodgers and the defendant. Ms. Rodgers, a friend of the defendant’s, testified that the defendant never got in the minivan. She admitted, however, that she never actually saw from her front seat position whether the defendant entered the van through the back seat door. She also was unable to remember anything about the interaction between the defendant and Officer McBride. Due to her vague recollection of the events of that night and her inability to observe whether the defendant entered the van, the court concludes that Ms. Rodgers is not a credible witness.

The defendant testified that he was waiting for a ride and that Anthony Houk, the driver of the minivan and a friend of the defendant’s, was offering him one. The defendant stated, however, that the only reason he spoke [82]*82to Mr. Houk was to tell him that he was missing a headlight. The defendant could have said this to Mr. Houk at his or Ms. Rodgers’ window but instead chose to walk around to the back seat passenger’s door, open it, and warn him about Officer McBride from there. Because the defendant needed a ride, Mr. Houk was offering one, and the defendant opened the backseat passenger’s door, it is unlikely that the defendant was only warning Mr. Houk about the minivan’s missing headlight.

Officer McBride and the defendant presented conflicting accounts about their exchange. Defense counsel presented little or no evidence to cast doubt on the credibility of Officer McBride, a full-time police officer with over nine years of experience. The Commonwealth, however, has presented sufficient testimony to cast doubt on the credibility of the defense witnesses. Viewing Officer McBride as the more credible witness, this court finds that the defendant entered the van, exited it as the officer approached, and belligerently confronted the officer. A pat-down of the defendant followed by a search at the police station revealed the evidence which the defendant now seeks to suppress.

All Pennsylvania citizens are afforded an expectation of privacy of their persons from unreasonable searches and seizures without the required probable cause under both Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. “In Terry v. Ohio, [392 U.S. 1, (1968)] . . .

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
In the Interest of S.J.
713 A.2d 45 (Supreme Court of Pennsylvania, 1998)
Commonwealth v. Kondash
808 A.2d 943 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Ayala
791 A.2d 1202 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Fahy
516 A.2d 689 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Zhahir
751 A.2d 1153 (Supreme Court of Pennsylvania, 2000)
Commonwealth v. MacK
953 A.2d 587 (Superior Court of Pennsylvania, 2008)
Commonwealth v. Pratt
930 A.2d 561 (Superior Court of Pennsylvania, 2007)
Commonwealth v. Snell
811 A.2d 581 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Fitzpatrick
666 A.2d 323 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Blair
860 A.2d 567 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Elmobdy
823 A.2d 180 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Jackson
907 A.2d 540 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Shelly
703 A.2d 499 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Lindblom
854 A.2d 604 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Powell
934 A.2d 721 (Superior Court of Pennsylvania, 2007)

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Bluebook (online)
11 Pa. D. & C.5th 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bacon-pactcompllawren-2010.