Com. v. Bruno, A. ( 2019 )

J-A30018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JOHN BRUNO, :
:
Appellant. : No. 1639 WDA 2017
Appeal from the Judgment of Sentence, June 5, 2017,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0011115-2016.
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 31, 2019
Anthony John Bruno appeals from the judgment of sentence, imposing
incarceration of 11 months and 29 days to 23 months and 29 days in the
Allegheny County Jail. This sentence followed a bench trial where the judge
convicted Bruno of attempted robbery,1 conspiracy to commit robbery,2
carrying a firearm without a license,3 and possessing instruments of a crime.4
Bruno challenges only the denial of his suppression motion. We affirm.
The Commonwealth charged Bruno along with his two accomplices –
Michael Allan Yots and Michael Thomas – and it consolidated their cases. Yots
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1 18 Pa.C.S.A. § 901(a).
2 18 Pa.C.S.A. § 903.
3 18 Pa.C.S.A. § 6106(a)(1).
4 18 Pa.C.S.A. § 907(a).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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filed a motion to suppress the Commonwealth’s evidence, which police had
seized following a traffic stop. Primarily, Yots alleged officers had made that
stop without reasonable suspicion. Bruno orally joined in the motion, which
the suppression court denied that same day.
At the conclusion of the suppression hearing, the judge made the
following findings of fact:
The Court finds that . . . Officer Greg Bauman received
information from a gentleman by the name of Regis Zlacki.
The information [was] . . . that within the next five hours or
so, an actual robbery and potential homicide was going to
be committed against an individual by the name of Scott
Hiwiller.
Mr. Zlacki indicated that he does know Mr. Hiwiller, and
he does know Mr. Hiwiller to be involved in, potentially,
drugs, marijuana. He indicated that the motive of the
robbery was for purposes of money – the Court could draw
the inference – Mr. Hiwiller allegedly would have obtained
by selling and distributing marijuana.
He gave the police officers specific information with
regard to the vehicle. He gave specific information with
regard to the individual that he specifically worked with, and
that individual was identified as Michael Yots, that they had
worked together, he had known him, and Mr. Yots was the
individual that first shared the information with Mr. Zlacki
with regard to this planned robbery and potential homicide.
Mr. Zlacki gave specific information that another
individual by the name of Michael was involved. Although
he did not know his last name, he described him as having
. . . a Brett-Keisel-type beard,[5] and ultimately, that
____________________________________________
5 Brett Keisel is a retired, professional football player from the National
Football League. According to his Wikipedia page, Mr. Keisel “played 12
seasons for the Pittsburgh Steelers . . . .” WIKIPEDIA: THE FREE ENCYLCOPEDIA,
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individual is [one of] the defendants in this case, a Mr.
Michael Thomas.
[Mr. Zlacki] also indicated there was a third individual
who was to participate in this. I believed he said he was of
Italian descent, an Italian-looking individual and he may
have known - - he said he knew the name as either Bruno
or Dino or something to that effect, but an Italian name.
He gave them a specific description of the car that they
would be in. He gave a specific description with regard to
the items that would be in the car. That would include, but
is not limited to, firearms, duct tape, various items that
would be needed in order to both rob an individual, bind
them, gag them and ultimately firearms for both threatening
the individual, as well as killing the individual.
He gave the specific place that he was to meet them that
evening. The Shop ‘n Save parking lot in the Russellton area
is the place where he was to meet them and engage in the
criminal activity with them.
The officer, based on that information, believed that a
felony was in the course of being committed, namely, both
a robbery and potentially a homicide. Officer Bauman acted
____________________________________________
“Brett Keisel,” available at https://en.wikipedia.org/wiki/Brett_Keisel (last
visited 1/10/19).
Prior to Super Bowl XLV, his beard looked like this:
Id.
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upon that information with the intent to stop the vehicle and
to prevent an ongoing felonious type act. He obtained other
officers to be involved. He obtained the Pennsylvania State
Police to be involved from the standpoint of the potential
victim, Mr. Scott Hiwiller.
Ultimately, they located a red Jeep Liberty, not a black
Jeep Liberty, but a newer model Jeep. When he stopped the
vehicle, three individuals were in the car. He specifically
described the individuals and where they were sitting in the
car, and there was a driver that was Michael Thomas in the
driver’s side seat. He described the front passenger was Mr.
Anthony Bruno, that the rear-seat passenger . . . behind the
driver’s side seat, rear seat as Michael Yots, the individual
[Mr. Zlacki] knew and he worked with and were the
individuals that he met along the way in the course of
planning this alleged criminal activity.
The officers in clear view - - Officer Bauman testified he
saw duct tape, one of the things that could be used in the
commission of a crime on its own. It’s not necessarily a
criminal act, but if used in a manner as described by Mr.
Zlacki then obviously [it] can be used for criminal purposes.
He also saw a holster which he was told by Mr. Zlacki they
would have guns of various type and weapons in the car.
Based on that, clearly, this Court finds that the officer,
while there was no traffic violation, had more than a
reasonable suspicion to stop that vehicle. This Court would
hold that it probably went above reasonable suspicion and
probably even rose to the level of probable cause for the
purposes of stopping the vehicle.
Once the vehicle was stopped, based on the items that
the officer viewed in plain view, he at that point proceeded
with an investigative detention, which he is permitted to do.
The purpose of the investigative detention is to do further
inquiry and investigation.
N.T., 5/8/17, at 152-57.
After denying suppression, the court of common pleas proceeded to
convict and sentence Bruno, as previously mentioned. It denied his post-
sentence motions, and this timely appeal followed.
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Bruno listed one issue in his appellate brief. He claims that we should
reverse the denial of suppression, because “the police had neither a
reasonable suspicion that criminal activity was afoot when they performed
that warrantless vehicle stop, nor probable cause for a warrantless arrest.”
Bruno’s Brief at 7. Essentially, Bruno challenges the reliability of Mr. Zlacki,
who reported the impending robbery and murder of Mr. Hiwiller, to serve as
an informant and give rise to reasonable suspicion to pull over Bruno and his
accomplices on their way to rob and possibly to kill Mr. Hiwiller.
However, this argument flies in the face of our scope of review. Bruno
has, for all intents and purposes, asked this Court to reweigh the credibility of
one the Commonwealth’s witness. This we may not do. See Commonwealth
v. Smith, 177 A.3d 915 (Pa. Super. 2017).
When reviewing the denial of a suppression motion, the appellate court
may only determine if the record supports the trial court’s factual findings and
whether the legal conclusions drawn therefrom are correct. Id. at 918. We
may consider only the evidence of the Commonwealth and so much of the
evidence for the defense as remains uncontradicted, because the
Commonwealth has won below. Id. Our review of suppression rulings
includes only the suppression hearing record itself. See In re L.J., 79 A.3d
1073, 1085 (Pa. 2013).
The suppression court’s legal conclusions are not binding on an appellate
court; rather, our duty is to determine if the suppression court properly
applied the law to the facts. Commonwealth v. Romero, 183 A.3d 364, 377
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(Pa. 2018) (internal citation and quotation marks omitted). Because the police
did not obtain a warrant prior to taking the actions at bar, our standard of
review is de novo. Id.Here, the suppression court has already conclusively determined that
“Regis Zlacki credibly testified at the suppression hearing that a co-worker,
Mike Yots, asked him to be part of a robbery.” Trial Court Opinion, 5/23/18,
at 3 (citing N.T., 5/8/17, at 10-11). After observing Mr. Zlacki in their police
station or on the witness stand, both the officers and the suppression judge
believed him. Accordingly, there is no basis for this Court to second guess
their in-person impressions from the cold record. Bruno’s claim that Mr. Zlacki
could not be a reliable informant, creating reasonable suspicion and probable
cause, fails at the appellate level.
Thus, as the learned Judge Philip A. Ignelzi explained in his 1925(a)
Opinion:
the reasonable suspicion standard is “less stringent” than
the probable cause standard. Commonwealth v. Cook,
735 A.2d 673, 676 (Pa. 1999). In order to demonstrate
reasonable suspicion, the police officer must be able to point
to specific and articulable facts and reasonable inferences
drawn from those facts in light of the officer’s experience.
Id. at 677.
Likewise, probable cause exists if the facts and
circumstances within the knowledge of the police officer at
the time of the arrest are sufficient to justify a person of
reasonable caution in believing the suspect has committed
or is committing a crime. Commonwealth v. Rodrigez,
666 A.2d 292, 295 (Pa. Super. 1995). The Superior Court
also noted that, “[we] focus on the circumstances as seen
through the eye of a trained police officer, taking into
consideration that probable cause does not involve
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certainties, but rather the factual and practical
considerations of everyday life on which reasonable and
prudent men act.” Commonwealth v. Santiago, 736 A.2d
624 (Pa. Super. 1999), citing Commonwealth v. Romero,
673 A.2d 374, 376 (Pa. Super. 1996) . . .
In this case, the determination of whether reasonable
suspicion and/or probable cause to arrest exists would be
based upon the totality of the circumstances as known by
Detective Bauman at the time the Defendant was taken into
custody. This includes the information provided to Detective
Bauman by Regis Zlacki and the other law enforcement
officers he spoke to . . .
Using the totality of the circumstances test, Officer
Bauman, had more than ample reasonable suspicion, as well
as probable cause, to arrest Bruno. As such, the
suppression court correctly found probable cause existed for
the Defendant's arrest. The suppression court’s ruling on
this matter should be upheld.
Trial Court Opinion, 5/23/18, at 9-10.
We agree. Under the totality-of-the-circumstances test, the officers had
reasonable suspicion to stop the Jeep Liberty and investigate whether its
occupants were committing or about to commit felonies as the known
informant had reported.
Moreover, we reject Bruno’s proposition that the police did not follow
the vehicle far enough to allow them to stop it, given Mr. Zlacki’s detailed
report to authorities. See Bruno’s Brief at 15. Bruno’s logic is flawed. There
is no limit to his wait-and-see defense, unless the police withhold action until
the Jeep Liberty has parked at the intended victim’s residence. For no matter
how far the officers might have followed it, there would always be a next,
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theoretical turn where it could have hypothetically traveled away from Mr.
Hiwiller’s home.
In fact, even had the officers made this investigatory stop only one block
short of the planned crime scene, Bruno still could have argued that the Jeep
Liberty might have driven past the address and thereby negated all reasonable
suspicion and probable cause. But officers need not wait until they witness a
crime in process or have prima facie evidence of a crime to acquire reasonable
suspicion or probable cause. See Rodriquez, supra. And they also need not
allow felons to come within striking distance of their victims before taking
investigative action. Thus, we conclude that the police did not need to wait-
and-see which direction on State Route 28 the Jeep Liberty traveled before
making this investigatory stop.
Therefore, the order denying Bruno’s motion to suppress the evidence
against him was appropriate, and his only issue on appeal fails.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2019
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