Com. v. Meirino, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EVARISTO MEIRINO,
Appellant No. 1730 EDA 2014
Appeal from the Judgment of Sentence of May 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010557-2013
BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 15, 2015
Appellant, Evaristo Meirino, appeals from the judgment of sentence
entered on May 16, 2014 following his bench trial convictions for theft from
a motor vehicle, theft by unlawful taking, and receiving stolen property.1
Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On June 14, 2013, at 3:24 a.m., Sergeant Jeremy Brosious of the
Philadelphia Police Department received a telephone call reporting a theft
from a parked white car at 6th Street and Oregon Avenue in Philadelphia.
The caller identified the suspect as a Hispanic male, wearing a green jacket
and tan pants, walking northbound from the area. Sergeant Brosious
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18 Pa.C.S.A. §§ 3934, 3921, and 3925, respectively.
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proceeded to the area within five to ten minutes of the telephone call. On
7th Street, coming from the direction of the alleged theft, Sergeant Brosious
encountered Appellant, who matched the description given by the caller.
Upon seeing the officer, Appellant quickly dropped to one knee near the
curb, but then got up and continued walking. Sergeant Brosious
commanded Appellant to stop; Appellant complied and put his hands on top
of the police car as directed.
Sergeant Brosious frisked Appellant for his safety and, in doing so, felt
a hard object inside Appellant’s jacket. Once removed, it was apparent that
the hard object was a sunglasses case. Sergeant Brosious opened the case
to see if it contained a weapon and discovered a pair of women’s sunglasses
inside. Sergeant Brosious also recovered a screwdriver from the area where
he previously saw Appellant kneeling. The screwdriver was dry despite wet
weather.
Sergeant Brosious transported Appellant back to the scene of the
crime. There, the white vehicle was on the corner as reported. Sergeant
Brosious summoned the vehicle owner and she told him that she had left her
sunglasses in the center console and that they were now missing. She
identified the sunglasses recovered from Appellant as hers. Police arrested
Appellant.
The Commonwealth filed the aforementioned charges against
Appellant. On October 10, 2013, Appellant filed a motion to suppress the
physical evidence recovered. On February 28, 2014, just prior to trial, the
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trial court held a hearing and denied relief. The case proceeded to a bench
trial, wherein the trial court found Appellant guilty of all the charges.
Appellant filed a motion to reconsider on March 12, 2014. On May 16, 2014,
the trial court denied Appellant’s motion to reconsider and proceeded to
sentencing. The trial court sentenced Appellant to a term of two to four
years of imprisonment for theft from a motor vehicle; the sentences on
Appellant’s other convictions merged. This timely appeal followed.2
On appeal, Appellant presents the following issue for our review:
Did not the lower court err by denying [A]ppellant’s motion
to suppress physical evidence as the police did not have a
reasonable suspicion to stop [A]ppellant based on an
anonymous radio call, nor reasonable suspicion that
[A]ppellant was armed and dangerous to justify frisking
[A]ppellant, and the police did not have probable cause to
seize the glasses case felt during the illegal frisk of
[A]ppellant?
Appellant’s Brief at 3.
Appellant argues “[t]he objective facts in this matter did not provide
Sergeant Brosious with reasonable suspicion to stop, frisk or search []
[A]ppellant of his closed container.” Id. at 10-11. More specifically,
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Appellant filed a notice of appeal on June 11, 2014. On July 15, 2014, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on July 17,
2014, but requested additional time to file a supplemental Rule 1925(b)
once counsel received all of the notes of testimony. The trial court granted
an extension and Appellant filed a supplemental Rule 1925(b) statement on
September 8, 2014. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on October 14, 2014.
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Appellant contends “an anonymous radio call is insufficient to establish
reasonable suspicion even if the police arrive within minutes to find a person
matching a detailed description at the exact place the caller said he would
be.” Id. at 12. He claims “police did not corroborate the information in the
radio call nor did [A]ppellant engage in any furtive or suspicious activity.”
Id. at 13. Appellant avers that he “bent down along the curb line for a mere
moment[,]” but police “never saw anything in [his] hand nor did the officer
see [A]ppellant place anything on the ground.” Id. at 13-14. Thus,
Appellant maintains police did not have reasonable suspicion to believe he
was engaged in criminal activity to justify an investigatory detention. Id. at
14.
Regarding the subsequent frisk, Appellant avers:
[N]othing [A]ppellant did indicated he was armed. There
was no information in the radio call that the suspect might
have a weapon. The sergeant did not see [A]ppellant
carrying anything that appeared to be a weapon nor did the
officer see any bulges or weapon-like outlines on his person.
Appellant was walking down the street toward a uniformed
police officer driving in a marked patrol car. When ordered
to stop, [A]ppellant complied placing his hands over his
head. Appellant did not attempt to flee or make any furtive
movements once in police custody. Finally, the sergeant did
not remember asking [A]ppellant any questions before
frisking him so there [were not statements by Appellant
implying that] he was armed. Instead, the sergeant
justified his immediate frisk of [A]ppellant [based] on the
time of night, 3:30 in the morning, and that [A]ppellant
appeared to match the description in the radio call. These
factors did not provide Sergeant Brosious with reasonable
suspicion to legitimize the frisk of [A]ppellant.
Id. at 15.
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Finally, Appellant contends that the search of his jacket was
“unwarranted as the glasses case in [his] pocket was not immediately
apparent as a weapon or any other type of contraband.” Id. Thus, he
posits the sergeant lacked “probable cause to reach in and remove the case”
and “the officer’s decision to open the case was entirely without
justification.” Id. at 15-16.
“Once a motion to suppress evidence has been filed, it is the
Commonwealth’s burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant’s
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.
Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an
appeal from the denial of a motion to suppress, our Supreme Court has
declared:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing the ruling of a suppression court, we must
consider only the evidence of the prosecution and so much
of the evidence of the defense as remains uncontradicted
when read in the context of the record as a whole. Where
the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
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Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007), cert.
denied, 522 U.S. 894 (2007)(internal citations omitted).3 “It is within the
suppression court’s sole province as factfinder to pass on the credibility of
witnesses and the weight to be given their testimony.” Commonwealth v.
Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006).
“The Fourth Amendment to the [United States] Constitution and Article
I, Section 8 of [the Pennsylvania] Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. McAdoo, 46
A.3d 781, 784 (Pa. Super. 2012). To safeguard our right to be free from
unreasonable searches and seizures, “courts require police to articulate the
basis for their interaction with citizens in [three] increasingly intrusive
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On October 30, 2013, our Supreme Court decided In re L.J., 79 A.3d
1073, 1087 (Pa. 2013). In L.J., our Supreme Court held that our scope of
review from a suppression ruling is limited to the evidentiary record that was
created at the suppression hearing. Id. at 1087. Prior to L.J., this Court
routinely held that, when reviewing a suppression court’s ruling, our scope of
review included “the evidence presented both at the suppression hearing
and at trial.” See Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa.
Super. 2011), quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5
(Pa. 1983). L.J. thus narrowed our scope of review of suppression court
rulings to the evidence presented at the suppression hearing.
However, L.J. declared that the new procedural rule of law it announced was
not retroactive, but was rather “prospective generally” – meaning that the
rule of law was applicable “to the parties in the case and [to] all litigation
commenced thereafter.” In re L.J., 79 A.3d at 1089 n.19. The current case
commenced on February 28, 2014, after L.J. was filed, thus, the new
procedural rule of law announced in L.J. applies to the case at bar. See id.
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situations.” McAdoo, 46 A.3d at 784. Our Supreme Court has categorized
these three situations as follows:
The first category, a mere encounter or request for
information, does not need to be supported by any level of
suspicion, and does not carry any official compulsion to stop
or respond. The second category, an investigative
detention, derives from Terry v. Ohio[4] and its progeny:
such a detention is lawful if supported by reasonable
suspicion because, although it subjects a suspect to a stop
and a period of detention, it does not involve such coercive
conditions as to constitute the functional equivalent of an
arrest. The final category, the arrest or custodial detention,
must be supported by probable cause.
Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003).
Here, there is no dispute that Appellant was subjected to an
investigatory detention. Hence, the detention was lawful if supported by
reasonable suspicion. We have explained:
Our Supreme Court has mandated that law enforcement
officers, prior to subjecting a citizen to an investigatory
detention, must harbor at least a reasonable suspicion that
the person seized is then engaged in unlawful activity. The
question of whether reasonable suspicion existed at the
time of an investigatory detention must be answered by
examining the totality of the circumstances to determine
whether the officer who initiated the stop had a
particularized and objective basis for suspecting the
individual stopped. Thus, to establish grounds for
reasonable suspicion, the officer must articulate specific
observations which, in conjunction with reasonable
inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that
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Terry v. Ohio, 392 U.S. 1 (1968).
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criminal activity was afoot and that the person he stopped
was involved in that activity.
Although a police officer’s knowledge and length of
experience weigh heavily in determining whether reasonable
suspicion existed, our Courts remain mindful that the
officer’s judgment is necessarily colored by his or her
primary involvement in the often competitive enterprise of
ferreting out crime. Therefore, the fundamental inquiry of a
reviewing court must be 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 inquiry will not
be satisfied by an officer’s hunch or unparticularized
suspicion.
Commonwealth v. Reppert, 814 A.2d 1196, 1203-1204 (Pa. Super. 2002)
(en banc) (internal quotations, citations, corrections, and emphasis
omitted).
“To have reasonable suspicion, police officers need not personally
observe the illegal or suspicious conduct, but may rely upon the information
of third parties, including ‘tips’ from citizens.” Commonwealth v. Lohr,
715 A.2d 459, 461 (Pa. Super. 1998). With respect to third-party “tips,” we
have held:
Reasonable suspicion, like probable cause, is dependent
upon both the content of information possessed by police
and its degree of reliability. Both factors – quantity and
quality – are considered in the “totality of the circumstances
– the whole picture,” that must be taken into account when
evaluating whether there is reasonable suspicion. Thus, if a
tip has a relatively low degree of reliability, more
information will be required to establish the requisite
quantum of suspicion than would be required if the tip were
reliable.
When the underlying source of the officer’s information is an
anonymous call, the tip should be treated with particular
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suspicion. However, a tip from an informer known to the
police may carry enough indicia or reliability for the police
to conduct an investigatory stop, even though the same tip
from an anonymous informant would likely not have done
so.
Indeed, identified citizens who report their observations of
criminal activity to police are assumed to be trustworthy, in
the absence of special circumstances, since a known
informant places himself at risk of prosecution for filing a
false claim if the tip is untrue, whereas an unknown
informant faces no such risk. When an identified third party
provides information to the police, we must examine the
specificity and reliability of the information provided. The
information supplied by the informant must be specific
enough to support reasonable suspicion that criminal
activity is occurring. To determine whether the information
provided is sufficient, we assess the information under the
totality of the circumstances. The informer’s reliability,
veracity, and basis of knowledge are all relevant factors in
this analysis.
Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa. Super. 2005)
(internal quotations and citations omitted).
“Where [] the source of the information given to the officers is
unknown, the range of details provided and the prediction of future behavior
are particularly significant, as is corroboration by independent police work.”
Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000) (citation
omitted). “While verification of predictive information constitutes one
avenue of obtaining the necessary corroboration of information from a
source of unknown reliability, the necessary corroboration may also be
supplied by circumstances that are independent of the tip, for example,
observation of suspicious conduct on the part of the suspect.” Id.
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Moreover, this Court has determined, “[t]he following factors must be
considered in justifying an investigatory stop: the specificity of the
description in conjunction with how well the suspect fits the description, the
proximity of the suspect to the crime, the time and place of the
confrontations, and the nature of the crime being reported.”
Commonwealth v. Thompson, 778 A.2d 1215, 1220 (Pa. Super. 2001);
see also Zhahir, 751 A.2d at 1157 (citation omitted) (“[T]he time, street
location, and the movements and manners of the parties bear upon the
totality assessment, as does the officer’s experience.”).
Here, Sergeant Brosious testified that he worked in the general area of
the crime at issue for “just over two and-a-half years.” N.T., 2/28/2014, at
8. He further testified that police “received a call for a report of theft in
progress occurring at 6th [Street] and Oregon” Avenue by “a Hispanic male,
wearing a green [] jacket [and] tan pants, last seen heading northbound on
6th Street[.]” Id. at 6. Sergeant Brosious arrived four blocks north of the
location, “within five [to] ten minutes.” Id. He saw Appellant, who matched
the description, at that location. Id. at 7. There were no other individuals
walking on the street. Id. at 14. When Appellant “looked up [and] saw the
police vehicle, [] he moved quickly over to the curb and dipped down[,]”
putting one knee down to the ground and touched the ground. Id.
The trial court determined that Sergeant Brosious had reasonable
suspicion to stop Appellant “based upon [Appellant’s] matching physical
description to the flash report, spatial proximity to the scene of the crime,
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temporal proximity at the time of the crime, and his suspicious and furtive
behavior.” Trial Court Opinion, 10/14/2014, at 11. We agree. Viewing the
facts in totality, Appellant matched the description given and was found
within four blocks from the crime walking in the direction specified by the
caller. Police were on the scene within five to ten minutes of the reported
crime. Upon seeing the sergeant, Appellant engaged in suspicious activity,
dropping to one knee near the curb line. The sergeant had two and a half
years of police experience in the vicinity of the crime. Accordingly, based
upon the totality of circumstances, we agree the sergeant had reasonable
suspicion to believe criminal activity was afoot to justify Appellant’s
investigative detention.
Regarding the subsequent frisk, we have previously determined:
Review of an officer's decision to frisk for weapons requires
balancing two legitimate interests: that of the citizen to be
free from unreasonable searches and seizures; and that of
the officer to be secure in his personal safety and to prevent
harm to others. To conduct a limited search for concealed
weapons, an officer must possess a justified belief that the
individual, whose suspicious behavior he is investigating at
close range, is armed and presently dangerous to the officer
or to others. In assessing the reasonableness of the officer's
decision to frisk, we do not consider his unparticularized
suspicion or hunch but rather the specific reasonable
inferences which he is entitled to draw from the facts in
light of his experience.
Zhahir, 751 A.2d at 1158 (citations, quotations, brackets and ellipsis
omitted). High crime areas, time of night, and furtive movements are
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factors to consider in assessing whether a protective frisk was justified. See
Commonwealth v. Scarborough, 89 A.3d 679, 684 (Pa. Super. 2014).
Here, the trial court noted:
Sergeant Brosious was also justified in performing a
protective frisk of [Appellant]. Sergeant Brosious testified
that he was very familiar with the 3rd District based upon his
two-and-a-half years (2 ½) patrolling the high crime area
with burglaries and thefts. […] The violent nature of theft,
diminished visibility due to the late hour [(3:30 a.m.)], and
suspicious and furtive dipping motion by [Appellant], all
contributed to the reasonable assumption that [Appellant]
may be armed and dangerous.
Trial Court Opinion, 10/14/2014, at 12.
We discern no abuse of discretion in the trial court’s factual
assessment, nor any error of law in the legal conclusion drawn from those
facts. Based upon the totality of the circumstances, the sergeant had a
particularized suspicion that Appellant may be armed. Appellant discounts
the fact that he made a furtive movement along the curb line. However, this
factor along with the fact that police were responding to a theft in a high
crime area at night gave the sergeant reasonable suspicion to believe
Appellant was armed. Accordingly, the protective frisk was proper and
Appellant is not entitled to relief.
Finally, with regard to the removal and opening of the sunglasses’ case
from Appellant’s jacket pocket, the United States Supreme Court has noted
that a protective search must “be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.” Commonwealth v.
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Wilson, 927 A.2d 279, 285 (Pa. Super. 2007), citing Terry, 392 U.S. at 29.
“Following a protective pat-down search of a suspect's person, a more
intrusive search can only be justified where the officer reasonably believed
that what he had felt appeared to be a weapon.” Id. (citation omitted). “If
the protective search goes beyond what is necessary to determine if the
suspect is armed, it is no longer valid under Terry and its fruits will be
suppressed.” Id.
Here, Sergeant Brosious testified he “felt a hard object inside
[Appellant’s] pocket.” N.T., 2/28/2014, at 9. He did not know what the
object was and was unable to discern whether it was a weapon. When he
removed the object he recognized it as a sunglasses case, however, he was
still concerned for his safety. He testified as such:
Well, I saw it was a sunglass case, but through my training,
I usually go through some things because I have learned
over the years that just because it’s what you think is in it
doesn’t necessarily mean it can’t hurt you. I like to open up
and just visually see and make sure that whatever’s inside
there is safe for me […]. I didn’t want him to have any
weapons or anything else because it was just me and him at
the time.
Id. at 10.
We conclude Sergeant Brosious’ intrusion actions were reasonably
designed to discover weapons. He reasonably believed that a weapon could
have been secreted inside the sunglasses case. Compare In Interest of
Dixon, 514 A.2d 165, 167 (Pa. Super. 1986) (“It stretches the bounds of
reason to believe that in a Terry pat-down, a heart-shaped charm would
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reasonably be mistaken for a dangerous weapon.”) Hence, we believe the
trial court properly determined that the police conducted a legal protective
frisk.
However, even if police exceeded the permissible scope of a protective
frisk under Terry, we would conclude that they would have inevitably have
discovered the stolen sunglasses. In describing the doctrine of inevitable
discovery, the United States Supreme Court has opined, “[e]xclusion of
physical evidence that would inevitably have been discovered adds nothing
to either the integrity or fairness of a criminal trial.” Nix v. Williams, 467
U.S. 431, 446 (1984). This Court has concluded:
Pennsylvania courts recognize the inevitable discovery
doctrine first described by the United States Supreme Court
in Nix v. Williams, 467 U.S. 431 (1984). That doctrine
provides that evidence which would have been discovered
was sufficiently purged of the original illegality to allow
admission of the evidence. Implicit in this doctrine is the
fact that the evidence would have been discovered despite
the initial illegality. If the prosecution can establish by a
preponderance of the evidence that the illegally obtained
evidence ultimately or inevitably would have been
discovered by lawful means, then the evidence is
admissible. The purpose of the inevitable discovery rule is
to block setting aside convictions that would have been
obtained without police misconduct. Thus, evidence that
ultimately or inevitably would have been recovered by
lawful means should not be suppressed despite the fact that
its actual recovery was accomplished through illegal actions.
Suppressing evidence in such cases, where it ultimately or
inevitably would have lawfully been recovered, would reject
logic, experience, and common sense.
This exception to the exclusionary rule has been invoked on
numerous occasions by Pennsylvania appellate courts as a
basis for admitting evidence that was, or was claimed to
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have been, illegally obtained by the police or other
government investigators. See, e.g., Commonwealth v.
Van Winkle, 880 A.2d 1280, 1285 (Pa. Super. 2005)
(holding that evidence obtained after officer exceeded
permissible scope of weapons frisk was admissible because
it fell within the inevitable discovery exception);
Commonwealth v. Ingram, [814 A.2d 264, 270 (Pa.
Super. 2002)] (deeming evidence obtained as a result of
involuntary confession admissible because it inevitably
would have been discovered); Commonwealth v. Miller,
724 A.2d 895, 900 n.5 (Pa. 1999) (citing Nix v. Williams,
supra, and noting that even if the evidence found in the
defendant's home had been illegally seized, it “would have
been admissible because it inevitably would have been
discovered”); Commonwealth v. Albrecht, 720 A.2d 693,
702 n.11 (Pa. 1998) (in claim decided under federal and
state constitutions, holding that even if warrantless search
of defendant's home had been improper, suppression not
required because the evidence inevitably would have been
discovered); Commonwealth v. Garcia, 661 A.2d 1388
(Pa. 1995) (defendant not entitled to suppression of drugs
in his pocket because they inevitably would have been
discovered since police lawfully were permitted to search
him incident to his arrest); Commonwealth v. Hoffman,
[589 A.2d 737, 744 (Pa. Super. 1991)] (finding evidence
recovered as a result of illegal search of defendant
admissible because it would have been inevitably
discovered); Commonwealth v. Speaks, 505 A.2d 310
(Pa. Super. 1986) (evidence regarding discovery of
marijuana in defendant's residence properly admitted under
inevitable discovery rule).
Commonwealth v. Gonzalez, 979 A.2d 879, 890-891 (Pa. Super. 2009)
(some citations, all quotations, brackets, and ellipsis omitted).
Sub judice, Appellant matched the description of a perpetrator
committing a theft from a parked car and engaged in a furtive movement as
police approached. Police were justified in stopping and searching Appellant
for their protection. Police were further justified in removing the sunglasses
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case from Appellant’s pocket to see if the hard object was a weapon. Police
also recovered a screwdriver from the area where Appellant was seen
dipping down. N.T., 2/28/2014, at 22. The screwdriver was dry even
though it was raining, establishing the likelihood of recent use and disposal.
Id. at 23. Even without opening the sunglasses case, as indicated, police
were investigating the theft from the white car parked at 6th and Oregon.
Id. at 14. They located the owner and she verified that the case was from
her car. Id.
Taken together, the recovered screwdriver, confirmation by the owner
that a sunglasses case was missing from her vehicle, along with the
additional evidence of time, place, and description of the perpetrator,
provided police with probable cause to arrest Appellant. The sunglasses
would inevitably have been discovered in a search incident to arrest.
Accordingly, for all of the foregoing reasons, denial of suppression was
proper.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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