Com. v. Evans, M. ( 2014 )

J-A23028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK DOUGLAS EVANS,
Appellant No. 1701 WDA 2013
Appeal from the Judgment of Sentence entered September 23, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0005630-2013
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
DISSENTING MEMORANDUM BY ALLEN, J.: FILED OCTOBER 30, 2014
My review of the record reveals that under the totality of the
circumstances, Officer Abraham’s search of the interior of Appellant’s pocket
was supported by probable cause. Accordingly, I would affirm the trial
court.
When reviewing the denial of a suppression motion “where the record
supports the trial court's factual findings, we are bound by those facts and
only reverse if the legal conclusions are in error. Moreover, we defer to the
trial judge's credibility determinations.” In re J.N., 878 A.2d 82, 85 (Pa.
Super. 2005). Here, the record reflects that Officer Abraham conducted a
stop of Appellant’s vehicle after observing that it had an inoperable license
plate light. N.T., 9/23/13, at 6. Following the stop, which occurred in a
“very high-crime area”, Officer Abraham saw Appellant make a “feverish”
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stuffing motion towards the left side of his body, and Appellant then put his
coat over the left side of his body. Id. at 5-7. Officer Abraham, fearing that
Appellant might be concealing a weapon, directed Appellant to exit the
vehicle and conducted a pat-down search. During the lawful pat-down of the
exterior of Appellant’s clothing, Officer Abraham felt a bulge in Appellant’s
pocket which the officer considered suspicious. Officer Abraham, whom the
trial court found credible, testified as follows:
Officer Abraham: As I patted down his left front
pants pocket area, I felt what I
know from my training and
experience without any
manipulation to be crack cocaine.
***
I asked [Appellant] what was in his
pocket, he said that he had crack
cocaine on him. I then went into
his left pants pocket and recovered
one knotted baggie containing
crack cocaine.
***
Assistant District Attorney: [C]an you please tell the court what if
anything about what you felt led you to
believe that it was crack cocaine?
Officer Abraham: It was a small to large chalky white
substance. ... The size of a pea.
Assistant District Attorney: Is that consistent with your
training and experience in narcotics
investigation?
Officer Abraham: Yes, it is.
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Assistant District Attorney: And what is it consistent with?
Officer Abraham: Crack cocaine.
Assistant District Attorney: And you also testified ... that you
conducted approximately 20 pat-
downs where you seized crack
cocaine is that correct?
Officer Abraham: Correct.
***
Assistant District Attorney: And what you felt when you patted
down [Appellant] in this case, was
that consistent with what you felt
on previous occasions?
Officer Abraham: Yes it is.
Id. at 8-9, 38-39.
The Majority contends that during the pat-down, Officer Abraham
could not have determined by plain feel, without manipulation, that the
bulge in Appellant’s pocket was contraband. The plain feel doctrine is “an
extremely narrow exception to the warrant requirement.” Commonwealth
v. Graham, 721 A.2d 1075, 1081 (Pa. 1998) citing Minnesota v.
Dickerson, 508 U.S. at 375, 113 S.Ct. at 2137. “The ‘plain feel’ doctrine
only applies under the limited circumstances where the facts meet the plain
view doctrine requirements that the criminal nature of the contraband is
immediately apparent, and the officer has a lawful right of access to the
object.” Id. “[A] Terry frisk will only support the seizure of contraband
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discovered via the officer's plain feel when the incriminating nature of that
contraband is immediately apparent to the officer, based solely on the
officer’s initial pat-down of the suspect’s outer garments.” Graham, 721
A.2d at 1082.
The Majority takes issue with the testimony of Officer Abraham
regarding his belief that the bulge in Appellant’s pocket was contraband.
Specifically, the Majority finds it incredible that “a pea-sized object, in and of
itself, and sight unseen, could have a ‘contour or mass’ that was
immediately recognizable as a controlled substance.” Majority at 7.
Additionally, the Majority disputes that “Officer Abraham’s sense of touch
was definitive enough to determine the chalk-like consistency of a pea-sized
object without manipulating it [and] despite Officer Abraham’s statement
that he immediately identified the object in [Appellant’s] pocket as crack
cocaine without manipulating it, the record reflects that he could not have
determined that the object ‘felt chalky’ unless he, in fact, manipulated it.”
Id.
My review of the record reflects, however, that the trial court – which
was in the best position to observe the demeanor of the witnesses and
assess their credibility – carefully considered Officer Abraham’s testimony,
weighing the testimony judiciously before making its credibility
determination. In so doing, the trial court reasoned that “the word [‘chalky’]
seems to suggest something that you would see and it is also suggesting a
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texture and that would be something the officer could feel. So maybe
[Officer Abraham’s] choice of words isn’t the best but when you talk about
texture he felt, my connotation of that is the officer was describing a texture
more than an appearance.” N.T., 9/23/13, at 53-54. Based on Officer
Abraham’s experience, the trial court, within its province as fact-finder,
found credible the officer’s testimony that, without manipulation, he believed
the item in Appellant’s pocket to be crack cocaine. See Commonwealth v.
Parker, 957 A.2d 311, 316 (2008) (where officer during lawful pat-down felt
in the defendant’s pocket hard rigid objects that were consistent with the
size, shape, and texture of packaged crack cocaine, a subsequent search
inside the defendant’s pocket was justified).
The Majority, however, discounts the trial court’s credibility
determinations to conclude that Officer Abraham must have manipulated
Appellant’s pocket during the pat-down, despite the trial court’s findings to
the contrary. Such a determination directly contradicts Officer Abraham’s
testimony that he did not manipulate Appellant’s pocket, that based on the
pat-down he believed the bulge in Appellant’s pocket was suspicious enough
to warrant further investigation, and that he therefore asked Appellant what
the bulge was, to which Appellant responded that it was crack cocaine. The
Majority effectively substitutes its judgment for the finder of fact, making a
credibility determination that the testimony of Officer Abraham (whom the
trial court found believable) was not credible. See Commonwealth v.
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White, 734 A.2d 374, 381 (Pa. 1999) (“there is no justification for an
appellate court, relying solely upon a cold record, to review the fact-finder's
first-hand credibility determinations”).
Here, given that the stop occurred in a high crime area, and that
Appellant made furtive efforts to conceal the left side of his body, Officer
Abraham was entirely justified in patting down Appellant. In my view, the
record supports the trial court’s determination that Officer Abraham
believed, without manipulation, that Appellant’s pocket contained
contraband. Upon his suspicions about the contents of Appellant’s pocket
being aroused, Officer Abraham asked Appellant what was in his pocket, to
which Appellant responded that he had crack cocaine, providing the officer
with probable cause to conduct a more intrusive search. Commonwealth
v. Kondash, 808 A.2d 943, 948 (Pa. Super. 2002) (a police officer is
permitted during Terry search to inquire into the contents of the defendant’s
clothing without first informing the defendant of his Miranda rights, as the
dictates of Miranda do not attach during an investigatory detention and the
defendant’s affirmative response that that he was carrying an intravenous
needle provided probable cause to arrest defendant for possession of drug
paraphernalia).
In my view, therefore, the officer’s arrest and search of the interior of
Appellant’s pocket was supported by probable cause. See Commonwealth
v. Valentin, 748 A.2d 711, 715 (Pa. Super. 2000) (defendant’s admission
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during investigative detention that he “[had] two bags of dope in [his]
pocket” gave rise to probable cause to arrest the defendant and conduct a
search of defendant's pockets incident to lawful arrest). Consequently, I
would affirm the trial court’s order denying Appellant’s suppression motion
and I would affirm the judgment of sentence.
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