Commonwealth v. George

878 A.2d 881, 2005 Pa. Super. 233, 2005 Pa. Super. LEXIS 1520
CourtSuperior Court of Pennsylvania
DecidedJune 27, 2005
StatusPublished
Cited by25 cases

This text of 878 A.2d 881 (Commonwealth v. George) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. George, 878 A.2d 881, 2005 Pa. Super. 233, 2005 Pa. Super. LEXIS 1520 (Pa. Ct. App. 2005).

Opinion

OPINION BY

BECK, J.:

¶ 1 After a bench trial, appellant Kevin George was found guilty of violating 18 Pa.C.S.A. § 4116(d) (related to trafficking in unauthorized copies of recorded devices) and 18 Pa.C.S.A. § 4119 (related to trafficking in items bearing counterfeit marks).

—Suppression—

¶ 2 Appellant first argues that the trial court erred in not suppressing the videotapes recovered from a sales table appellant had set up on a public street. Appellant claims that the police did not have probable cause to arrest him; therefore the evidence they seized pursuant to the illegal arrest must be suppressed.

¶ 3 Our inquiry in reviewing a suppression court’s ruling is “whether the factual findings are supported by the record and the legal conclusions drawn therefrom are correct.” Commonwealth v. Johonoson, 844 A.2d 556, 560 (Pa.Super.2004). “Oto-scope of review is limited; we may consider only the evidence of the prosecution 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. Stevenson, 832 A.2d 1123, 1126 (Pa.Super.2003). We adhere to the facts found by the suppression court and rely on its determinations of credibility so long as the record supports its findings. Johonoson, 844 A.2d at 560. The appellate standard of review for the suppression court’s legal conclusions, however, is de novo. Id.

¶ 4 In the instant case, the prosecution’s evidence and the uncontradicted defense evidence in the record reveal the following series of events leading up to appellant’s arrest. William Mock and Connell McGowen are two field investigators in the employ of the Motion Picture Association of America (“MPAA”). Mock was certified at the suppression hearing as an expert in the identification of videotapes in counterfeit packaging that are unauthorized copies of intellectual property. He testified that he and McGowen surveilled appellant as he was selling videotapes from a table erected on a public sidewalk. McGowen also talked with appellant for a time. The MPAA field investigators suspected that appellant was trafficking in unauthorized videotapes bearing counterfeit marks.

¶ 5 The two went to a nearby police station to report appellant’s activities. After speaking to the MPAA investigators, [884]*884Officer Livewell joined them at the location where appellant was selling the videotapes. At first, Officer Livewell watched as McGowen and Mock continued their investigation.

¶ 6 Mock testified that he looked closely at appellant’s video wares. He noticed that the videotapes for sale bore many of the earmarks of counterfeit packaging and unauthorized copying, including blurry printing on their cases, low-quality cardboard boxes, bogus trademarked studio logos and titles of motion pictures that were currently playing in theatres, and therefore not yet authorized for video release. Mock signaled the police officer to arrest appellant.

¶ 7 Officer Livewell testified that he approached the table, observed the videotapes and immediately placed appellant under arrest. He testified that he was aware of the characteristics of counterfeiting and unauthorized copying from his conversation with the MPAA agents and generally from three previous arrests he had made for unauthorized or counterfeit video sales. The officer seized one hundred twenty-four videotapes from the sales table. Mock later screened a selection of ten of the one hundred twenty-four tapes that appeared from their packaging to be counterfeit, and determined in his expert opinion that all of the videotapes were unauthorized copies. Appellant argues that the evidence should have been excluded “because the officer did not have probable cause to arrest .... ” Appellant’s Brief at 2.

¶ 8 Both the Pennsylvania and Federal Constitutions prohibit unreasonable searches and seizures. U.S. CONST, amend. TV; PA. CONST, art. I, § 8; see Stevenson, 832 A.2d at 1127. An officer’s warrantless arrest of a suspect, to be lawful, must be supported under the totality of the circumstances by “probable cause to believe that (1) a felony has been committed; and (2) the person to be arrested is the felon.” Commonwealth v. Thompson, 778 A.2d 1215, 1221-22 (Pa.Super.2001). Probable cause typically exists “[wjhere the facts and circumstances within a police officer’s knowledge would warrant a person of reasonable caution to believe that an offense has been committed.” In re C.C.J., 799 A.2d 116, 121 (Pa.Super.2002) (citations omitted). It is not necessary, however, for the officer to have direct, personal knowledge of the relevant facts and circumstances. Commonwealth v. Walker, 348 Pa.Super. 207, 501 A.2d 1143, 1148 (1985).

¶ 9 Information provided by an informant may legitimately form the basis for probable cause where, for example, “police independently corroborate the tip.” Commonwealth v. Luv, 557 Pa. 570, 576, 735 A.2d 87, 90 (1999). The same is true where the informant is a victim or eyewitness whose identity is known. Commonwealth v. Stokes, 480 Pa. 38, 44, 389 A.2d 74, 77 (1978). Indeed, “[identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances.” Commonwealth v. Collazo, 692 A.2d 1116, 1118 (Pa.Super.1997) (quotation omitted).

¶ 10 In this case, appellant was charged with, inter alia, a felony under 18 Pa. C.S.A. § 4119, “Trademark counterfeiting.” Section 4119(a) makes it unlawful for any person knowingly to display, offer for sale, sell or possess with intent to sell or distribute “any items or services bearing or identified by a counterfeit mark.” The crime is graded as a third-degree felony if it involves greater than one hundred but fewer than one thousand items bearing a counterfeit mark. § 4119(c)(2)(ii). Counterfeit marks include “[a]ny unauthorized reproduction or copy [885]*885of intellectual property ... [and] [intellectual property affixed to any item knowingly sold, offered for sale, manufactured or distributed ... without the authority of the owner of the intellectual property.” § 4119(i). “Intellectual property” is defined as “[a]ny trademark, service mark, trade name, label, term, device, design or word adopted or used by a person to identify that person’s goods or services.” Id.

¶ 11 Officer Livewell based his arrest of appellant largely on the information provided by the MPAA field investigators, who were reliable, knowledgeable, identified citizens, and were eyewitnesses to appellant’s crime. As such, the court found them trustworthy.1 See Collazo, 692 A.2d at 1118; Stokes, 480 Pa. at 44, 889 A.2d at 77. More importantly, Officer Livewell himself observed the videotapes on the table before he arrested appellant, thereby independently verifying the experts’ conclusions. See Luv, 557 Pa.

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Cite This Page — Counsel Stack

Bluebook (online)
878 A.2d 881, 2005 Pa. Super. 233, 2005 Pa. Super. LEXIS 1520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-george-pasuperct-2005.