Commonwealth v. Shabezz ( 2015 )

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2015 PA Super 266COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SALEEM SHABEZZ
Appellee Nos. 1639 EDA 2014 AND
1702 EDA 2014
Appeal from the Orders Entered April 2, 2014 and May 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0012538-2013 and CP-51-CR-0015450-
2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD, JJ.*
OPINION BY STABILE, J.: FILED DECEMBER 21, 2015
Appellant, the Commonwealth of Pennsylvania, appeals from the trial
court’s April 2, 2014 and May 15, 2014 orders suppressing evidence. We
affirm.
We begin with a review of the pertinent facts, as gleaned from the
transcript of the suppression hearing.1 Sergeant Michael Cerutti (“Sergeant
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*
Former Justice specially assigned to the Superior Court.
1
In reviewing a trial court’s suppression decision, we must confine our
review to the transcript of the suppression hearing. In re L.J., 79 A.3d
1073, 1082-85 (Pa. 2014). Given Appellee’s success here, the case did not
proceed to trial and the suppression hearing transcript is the only one
available.
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Cerutti”), a member of the narcotics enforcement team of the 15 th District
police department in the City of Philadelphia, testified that on June 1, 2013,
he was overseeing a surveillance operation at the McDonald’s restaurant at
the intersection of Cottman and Roosevelt Boulevards in the City of
Philadelphia. N.T. Hearing, 4/2/14, at 7-9. Surveillance commenced at
7:30 or 7:40 p.m. Id. at 11. Sergeant Cerutti has been involved in
“hundreds of arrests” at that location and it has been a hot spot for at least
three years. Id. at 9-10. He testified that participants in the transaction
would commonly meet at the McDonald’s and then travel to a nearby 7-11 to
complete the exchange. Id. at 9-10. Sergeant Cerutti did not personally
observe the transaction at issue in this case, but received reports from
members of his team who were on the scene and gave the order to stop
Appellee, Saleem Shabezz, and the other involved parties. Id. at 17-18.
Officer Steven Burgoon (“Officer Burgoon”) testified that he observed
Appellee engage in a drug transaction in the 7-11 parking lot. Officer
Burgoon confirmed Sergeant Cerutti’s testimony that many drug
transactions occur at the location involved in this case. Id. at 21. On the
evening in question, a member of the surveillance team informed Officer
Burgoon that a tan Nissan was leaving the McDondald’s. Id. at 22. Officer
Burgoon and his partner, Officer James Wade (“Officer Wade”), followed the
Nissan in their unmarked vehicle. Id. The Nissan drove from McDonald’s to
the 7-11 parking lot one block away. Id. at 22. Shortly thereafter, Officer
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Burgoon observed a red Acura arrive in the 7-11 parking lot and park
several spaces from the Nissan. Id. From his vantage point 45 feet away,
Officer Burgoon observed Appellee emerge from the passenger side of the
Acura, walk to the passenger side of the Nissan, open the passenger door,
and engage in a hand-to-hand drug transaction with the Nissan’s driver. Id.
at 22-23. The suspected transaction occurred shortly after 8:00 p.m. Id. at
39, 48.
The trial court asked Officer Burgoon to explain why he believed he
saw a hand-to-hand drug transaction. Id. at 22. Officer Burgoon explained:
I saw [Appellee] reach in towards the driver, did like a
cupping act. I did not see any USC [United States Currency]
being exchanged, but I saw what I believed was a transaction
because the hand movement was like a dropping—picking up
and dropping action from [Appellee].
THE COURT: Did you see what was dropped?
[Officer Burgoon]: No. It was small objects it looked like.
Id. at 23. A written “PARS” report,2 prepared shortly after the incident,
stated only that Appellee opened the passenger door of the Nissan, leaned
in, and had a conversation with the driver. Id. at 39. Officer Apostolu
prepared the report based in part on a briefing from Officer Burgoon. Id. at
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2
The record does not define this acronym, but our understanding is that it
refers to the Philadelphia Police Department arrest report.
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40. Officer Burgoon did not mention any discrepancy to Officer Apostolu3
when he first reviewed the report. Id. at 44.
After the transaction, Appellee proceeded back to the Acura, and both
vehicles began to depart from the 7-11 parking lot. Id. at 22. Officer
Burgoon positioned his vehicle to block the parking lot’s exit. Id. Sergeant
Cerutti arrived and positioned his vehicle so that the Acura and the Nissan
could not back up. Id. at 26. Officer Burgoon’s vehicle was “almost nose to
nose” with the Acura. Id. at 26, 46. Appellee immediately fled from the
passenger side of the Acura and was apprehended on foot by Officer
Apostolu, who arrested him and conducted a pat-down search. Id. Officer
Apostolu retrieved a baggie of marijuana and $1,800.00 in cash from
Appellee’s person. Id. The remaining vehicle occupants were ordered out
and handcuffed. Id. at 47, 49-50.
From the front passenger-side floor of the Acura, police recovered a
bag containing packaged marijuana, packaging materials and a scale. Id. at
30-31, 51. A bag recovered from the backseat contained marijuana and
Adderall. Id. at 32, 52. A Smith and Wesson nine-millimeter handgun—
later determined to be stolen—was recovered from the glove box. Id. at 29.
A clear baggie with marijuana was recovered from the center console. Id.
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3
Officer Apostolu did not testify, and his first name is not evident in the
record.
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at 51. The Acura belonged to the driver’s mother. Id. at 33-34. A third
individual—a juvenile—was in the Acura’s back seat. Id. at 34.
After his arrest, the Commonwealth charged Appellee with possession
of a controlled substance (marijuana), possession with intent to deliver a
controlled substance (marijuana), conspiracy, unlawful possession of a
firearm, and possession of an instrument of crime at docket number CP-51-
CR-0012538-2013.4 In connection with the stolen handgun recovered from
the Acura’s glove box, the Commonwealth also charged Appellee with
robbery, theft by unlawful taking, receiving stolen property, conspiracy,
unlawful possession of firearms, assault, recklessly endangering another
person, and terroristic threats at docket number CP-51-CR0015450-2013.5
By order of April 2, 2014, Judge Paula Patrick granted Appellee’s motion to
suppress evidence at number 12538. The same evidence is at issue in
number 15450, and the Commonwealth conceded that it was collaterally
estopped from challenging Appellee’s motion to suppress at number 15450.
By order of May 15, 2014, Judge Earl W. Trent, Jr. entered an order granting
Appellee’s motion to suppress at number 15450. We have sua sponte
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4
35 P.S. § 780-113(16) and (30), 18 Pa.C.S.A. §§ 903, 6105, 6106 and
907, respectively.
5
18 Pa.C.S.A. §§ 3701, 3921, 3925, 903, 6105, 6106, 2701, 2705, and
2706, respectively.
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consolidated these cases for appeal, as they involve precisely the same facts
and legal issues.6
The Commonwealth filed timely notices of appeal in both cases
pursuant to Pa.R.A.P. 311(d). Neither trial judge ordered the
Commonwealth to file a concise statement of errors pursuant to Pa.R.A.P.
1925(b). The Commonwealth raises two issues for our review:
I. Did the lower court err in suppressing drugs, a gun,
and other evidence found in a car where [Appellee]
failed to prove a reasonable expectation of privacy in
the car?
II. Did the lower court err in suppressing drugs, a gun,
and other evidence found in a car where police
observed conduct that resembled prior drug
transactions within their experience and [Appellee]
fled when police stopped the car?
Commonwealth’s Brief at 4.
We review an order granting a defendant’s suppression motion as
follows:
This Court is bound by those of the suppression court’s
factual findings which find support in the record, but we are not
bound by the court’s conclusions of law. When the suppression
court’s specific factual findings are unannounced, or there is a
gap in the findings, the appellate court should consider only the
evidence of the prevailing suppression party (here, appellee) and
the evidence of the other party (here, the prosecution) that,
when read in the context of the entire record, remains
uncontradicted.
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6
See Pa.R.A.P. 513, governing consolidation of multiple appeals.
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Commonwealth v. Millner, 888 A.2d 680, 685 (Pa. 2005). The
suppression court’s findings of fact are dependent upon its credibility
determinations. L.J., 79 A.3d at 1085. “[O]ur standard of review is highly
deferential with respect to the suppression court’s factual findings and
credibility determinations.” Id. at 1080 n.6.
In its first argument, the Commonwealth asserts that Appellee had no
reasonable expectation of privacy in the Acura and therefore no standing to
seek suppression of any evidence recovered from the vehicle. In its second
argument, the Commonwealth asserts that the record does not support the
trial court’s findings of fact. We find it useful to address these issues in
reverse order so that we can conduct our legal analysis after a thorough
assessment of the record and the trial court’s findings.
At the conclusion of the suppression hearing, the trial court granted
Appellee’s motion to suppress because it disbelieved the Commonwealth’s
witnesses:7
Officer Burgoon testified to things which I didn’t believe. I
thought it was hard for me to believe certain things about him
testifying with 45 feet away with a naked eye that he was able to
see, quote, this transaction, and I asked him about that. He
then began to kind of sort of explain. That’s not sufficient under
the law, but I had a difficult time in believing some of the things
he said.
N.T. Hearing, 4/24/14, at 68.
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7
The hearing addressed the joint motion of Appellee and his co-defendant,
the driver of the Acura.
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In her findings of fact, the trial court noted that the PARS report did
not describe a hand-to-hand drug transaction between Appellee and the
Nissan driver, merely a conversation. Trial Court Opinion, 8/13/14, Findings
of Fact ¶ 9. The court found Officer Burgoon’s account of the hand-to-hand
transaction not credible. Id. Officer Burgoon made the observations “from
nearly 45 feet away at around 7:30 p.m. without the aid of any binoculars
or night vision. Id. at Findings of Fact ¶ 14 (emphasis in original). “This
Court had a difficult time believing that the officer was able to make out
such observations in the dark of night nearly 50 feet from where the
defendants were located.” Id. at Findings of Fact ¶ 15. “The [PARS] report
for this incident does not indicate that Officer Burgoon ever witnessed any
cupping of the hands or a hand to hand transaction take place in the parking
lot.” Id. at Findings of Fact ¶ 23. “It states that [Appellee] opened the
Passenger door and leaned in and had a brief conversation with [the Nissan’s
driver].” Id. “Further, Officer Burgoon did not tell [Sergeant Cerutti] that
he observed a cupping motion or anything like that in his report to his
supervisor.” Id.
The trial court thus chose to credit the facts as stated in the PARS
report. Id. at Findings of Fact ¶ 24. The court did not credit Officer
Burgoon’s observations of the alleged hand-to-hand drug transaction, in part
because his view was “obscured.” Id. In summary:
[N]othing of significance was ever really observed. The
officers simply witnessed people talking in a parking lot near
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their vehicles. This Court did not believe that any officer could
have observed any alleged hand to hand transaction take place
from nearly fifty feet away, yet alone from that vantage point at
night. It would be next to impossible to see such movement
from that distance at night without the aid of binoculars or night
vision. In addition, the PARS did not state that the officers
witnessed any such thing. This Court did find that the officers
were conducting surveillance. This Court also determined that
the officers had observed the suspects talking in a parking lot.
But those are the only facts which the Commonwealth clearly
established at the hearing.
Id. at 14.
The Commonwealth argues the record does not support the trial
court’s finding that Officer Burgoon made his observations in the dark of
night. As set forth above, the suppression transcript indicates that this
incident occurred shortly after 8:00 p.m. on June 1, 2013. The trial court
discredited Officer Burgoon’s testimony in part because it did not believe he
could observe a drug transaction from 50 feet away in the “dark of night”
without binoculars or night vision. Since this incident occurred around 8:00
p.m. on June 1, we agree with the Commonwealth that the record does not
support the trial court’s finding that the incident occurred in the “dark of
night.”8
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8
The record contains no evidence of whether the sky was cloudless,
severely overcast, or anything in between. The record also does not support
the trial court’s finding that the arrest occurred at 7:30 p.m. As set forth in
our summary of the suppression transcript, Sergeant Cerutti testified that
the surveillance commenced at 7:30 p.m. and Officer Burgoon testified that
the arrest occurred shortly after 8:00 p.m. Regardless of this discrepancy,
(Footnote Continued Next Page)
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Nonetheless, the “dark of night” finding was not the trial court’s only
basis for disbelieving Officer Burgoon’s account of the hand-to-hand
transaction. The trial court also relied on the PARS report. The PARS report
prepared shortly after the incident described conversation between Appellee
and the driver of the Nissan but not a hand-to-hand transaction. Thus, the
record contains evidence supporting the trial court’s finding that Appellee
and the Nissan driver engaged only in conversation. Pursuant to the
applicable standard of review, that finding is binding on this Court.
The Commonwealth argues that police were justified in stopping the
vehicles and arresting Appellee even if Officer Burgoon observed only a
conversation between Appellee and the Nissan driver. The Commonwealth
relies on the procession from McDonald’s to the 7-11 in accord with the
common practice of drug transactions at that location, the brief conversation
between Appellee and the Nissan driver, both cars moving to depart from
the 7-11 parking lot with no vehicle occupant having entered the store, and
Appellee’s immediate flight upon the appearance of the police. The
Commonwealth argues that police had at least reasonable suspicion to stop
the Acura and Nissan as they were leaving the 7-11 parking lot and probable
cause to arrest Appellee in light of his flight from a lawful detention.
Our courts recognize three levels of police interaction.
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(Footnote Continued)
the record does not support a finding that the arrest occurred in the dark of
night.
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The first of these is a ‘mere encounter’ (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or respond.
The second, an ‘investigative detention’ must be supported by
reasonable suspicion; it subjects a suspect to a stop and period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of arrest. Finally, an arrest
or ‘custodial detention’ must be supported by probable cause
Com. v. Lyles, 54 A.3d 76, 79 (Pa. Super. 2012) affirmed, 97 A.3d 298 (Pa.
2014).
The Commonwealth argues that even if we conclude the record
supports the trial court’s findings, the stop of the vehicles was an
investigative detention supported by reasonable suspicion.9 We discern the
existence of reasonable suspicion according to the following strictures:
Regarding the stop, a police officer may, short of an arrest,
conduct an investigative detention if he has a reasonable
suspicion, based upon specific and articulable facts, that
criminality is afoot. The fundamental inquiry is an objective one,
namely, whether the facts available to the officer at the moment
of the [intrusion] warrant a man of reasonable caution in the
belief that the action taken was appropriate. This assessment,
like that applicable to the determination of probable cause,
requires an evaluation of the totality of the circumstances, with a
lesser showing needed to demonstrate reasonable suspicion in
terms of both quantity or content and reliability.
Com. v. Zhahir, 751 A.2d 1153, 1156-57 (Pa. 2000) (internal citations and
quotation marks omitted). “In conducting a reasonable suspicion inquiry, a
suppression court is required to ‘afford due weight to the specific, reasonable
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9
The Commonwealth also argues it had probable cause to support the
warrantless arrests. Commonwealth’s Brief at 18-19. In light of our
disposition of this case, we need not address that issue.
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inferences drawn from the facts in light of the officer’s experience.’”
Commonwealth v. Carter, 105 A.3d 765, 775 (Pa. Super. 2014) (en
banc).
We cannot conclude that the facts before us, as found by the trial
court, evince reasonable suspicion in support of the vehicle stop. The
evidence deemed credible by the suppression court indicates that two
vehicles proceeded from a McDonald’s parking lot to a 7-11 parking lot
where Appellee stepped out of one vehicle and conversed with the driver of
the other. The suppression court did not credit testimony indicating that
that Appellee did anything more than engage in conversation. We are
cognizant that Sergeant Cerutti testified to making hundreds of arrests in
the vicinity of the McDonald’s and 7-11, which had been a hot spot for three
years. N.T. Hearing, 4/2/14, at 9-10. The suppression court apparently did
not credit Sergeant Cerutti’s testimony, as the court noted that the PARS
report contained no mention of a pattern of narcotics activity at that
location. Trial Court Opinion, 8/13/14, Findings of Fact ¶ 36. Rather, the
suppression court found as fact that police acted based on a conversation in
a parking lot and nothing more. Id. at ¶ 37. The court disbelieved much of
the Commonwealth’s evidence because several officers testified to facts that
were omitted from and/or inconsistent with the contemporaneous arrest
report. We must be highly deferential to the suppression court’s credibility
determinations. L.J., 79 A.3d at 1080 n.6.
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Under these circumstances, we cannot conclude that the police had
reasonable suspicion to support an investigative detention of the Nissan and
Acura and their occupants. The United States Supreme Court has held that
a vehicle stop constitutes a seizure of all persons inside the vehicle.
Brendlin v. California, 551 U.S. 249, 251 (2007). Thus, all occupants of
the vehicle have standing to challenge the constitutionality of the stop. Id.Pursuant to Pennsylvania law, any possessions Appellee abandoned in the
Acura are subject to suppression because police lacked reasonable suspicion
to detain Appellee. Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996).
Specifically, the Matos Court held that where police lack at least reasonable
suspicion to detain a suspect, any property that suspect discards during
flight is subject to suppression. Id.Applying the foregoing law to the record, in light of the suppression
court’s findings of fact and credibility determinations, is a simple matter.
The Commonwealth did not produce enough credible evidence to support a
conclusion that police had reasonable suspicion to detain the vehicle in which
Appellee was a passenger.10 As such, the trial court did not err in
suppressing all of the evidence retrieved from the vehicle and from
Appellee’s person after his arrest. We therefore affirm the trial court’s
order.
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10
Given our analysis, we need not discern whether Appellee had a
reasonable expectation of privacy in the vehicle.
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Order affirmed.
P.J.E. Ford Elliott files a concurring statement in which Judge Stabile
and Justice Fitzgerald join.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015
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