Com. v. Van, S. ( 2019 )

J-S46039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEREYRATH VAN :
:
Appellant : No. 2350 EDA 2018
Appeal from the Judgment of Sentence Entered June 25, 2018
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001628-2016
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 10, 2019
Appellant, Sereyrath Van, appeals from the aggregate judgment of
sentence of six and one half to thirteen years’ incarceration, which was
imposed by the Honorable Diane E. Gibbons, after his conviction at a
stipulated bench trial for Possession With the Intent to Deliver (PWID)
(cocaine), PWID (marijuana), Possession of Drug Paraphernalia, Criminal Use
of Communication Facility, and Conspiracy.1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts of this case as follows,
The investigation that lead [sic] to [Appellant’s] arrest was
initiated based on information received from a confidential
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), (32), 18 Pa.C.S. §§ 7512(a), 903, respectively.
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informant. Officer Gansky first had contact with the informant a
week or two [] prior to December 14, 2015. On December 14 th,
the informant arrived at the Bensalem Township Police
Department and spoke to Officer Gansky. The informant advised
Officer Gansky that he had personal knowledge regarding an
individual identified as Gunnar Derry. He stated that Derry sells
marijuana, that he was seen with multiple pounds of marijuana in
the past and that he was currently offering to sell marijuana.
Officer Gansky obtained a photograph of Gunnar Derry from police
records and showed that photograph to the informant. The
informant confirmed the individual depicted in the photograph was
the same individual the informant knew to be selling marijuana.
Working with the police, the informant contacted Derry and
arranged to purchase 5 pounds of marijuana for $15,000.
Although Officer Gansky was in and out of the room being utilized
by the confidential informant, he heard the confidential informant
set up the purchase. After speaking to Derry, the confidential
informant advised Officer Gansky that Derry would be arriving at
the Applebee’s Grill & Bar located on Street Road in Bensalem
Township, Bucks County, at 4:45 p.m. that day to make the sale.
The confidential informant further advised Officer Gansky that
Derry’s supplier would be present and participate in the
transaction. Officer Gansky testified that he was advised that
Derry would act as the “middleman” in the transaction. Based on
information received from Derry, Derry’s supplier was described
as an Asian male who would be driving a white BMW Alpine with
distinctive rims. Derry sent photographs of the marijuana to be
purchased and the vehicle that his supplier would be driving to the
confidential informant’s cellphone. Those photographs were
preserved by Officer Gansky and were admitted into evidence as
Exhibits CS-1 and CS-2.
Police then proceeded to the Applebee’s to conduct surveillance.
Officer Gansky made the following observations. At
approximately 4:45 p.m., Derry arrived at the Applebee’s parking
lot in a Volkswagen. Immediately after Derry’s arrival, a white
BMW drove into the parking lot. The vehicle matched the
description of the vehicle Derry’s supplier was reported to be
driving. The driver and sole occupant of the vehicle was an Asian
male. When the BMW arrived, Derry immediately got out of the
Volkswagen and got into the passenger seat of the BMW, which
then circled the parking lot three times before parking. Derry and
[Appellant] then got out of the BMW and approached the
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Applebee’s. Derry was detained directly outside the Applebee’s.
Sergeant Schwartz located [Appellant] seated at the bar.
Sergeant Schwartz told [Appellant] he was being detained, placed
[Appellant] in handcuffs, patted him down, and took him to the
area immediately outside the front entrance where Officer Gansky
identified him as the individual who had arrived in the BMW and
interacted with Derry in the parking lot. After the smell of raw
marijuana was observed emanating from the trunk of the BMW,
the BMW was searched. Five freezer bags of marijuana [were]
found inside a box in the trunk. [Appellant] was then transported
from the scene.
TCO, 12/20/18 at 3-4 (citations to notes of testimony omitted). Following his
arrest, Appellant waived his Miranda2 rights and gave a statement admitting
that he had gone to the Applebee’s to sell marijuana pursuant to the
arrangements made with the confidential informant. At a subsequent search
of Appellant’s apartment, police seized approximately 14 pounds of marijuana,
approximately 8.2 ounces of cocaine, cutting agents, digital scales, packing
materials, a cocaine press and a Smith and Wesson .9 mm firearm. TCO,
12/20/18 at 2.
On September 12, 2016, Appellant filed a motion to suppress any and
all physical evidence and his statement given to police; Appellant challenged
the constitutionally of his stop, detention and arrest, the statement he gave
to police and the subsequent search of his apartment. The trial court held a
suppression hearing on June 20, 2017.
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1996).
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Appellant withdrew his motion to suppress his statement to police and
physical evidence obtained from a search of his apartment. See Letter from
Attorney Louis R. Busico, 6/20/17; N.T. 6/25/18 at 2. Therefore, the only
issues before the trial judge at the suppression hearing were whether the
encounter between police and Appellant inside the Applebee’s was an
investigatory detention or arrest, and whether the police had the requisite
probable cause or reasonable suspicion. After taking the matter under
advisement and receiving briefs from the parties, the trial court denied the
motion to suppress by Order dated December 22, 2017.
The trial court announced its findings of fact and conclusions of law at a
December 25, 2017 hearing. The trial court found, “[t]here was really no
dispute as to the facts, whether the facts were elicited on direct examination
or cross-examination of the Commonwealths’ witnesses.” N.T. 6/25/18 at 5-
6. “There is no inconsistence among the testimony that was presented.” Id.
The trial court asked counsel for Appellant and the Commonwealth if there
was “any specific finding of fact or any conflict in the evidence that they saw
that you would like me to make a ruling on.” Id. at 6. Counsel for Appellant
and the Commonwealth both responded, “[n]o.” Id. The trial court found
Officer Gansky and Sergeant Schwartz “credible” and “uncontradicted.” Id.
Additionally,
[w]ith regard to conclusion of law, the issue is whether or not at
the time [Appellant] was detained, whether that was an
investigatory detention or that was an arrest. . . . I find that the
informant that was utilized in this case that began the
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investigation into the alleged delivery of marijuana into Bucks
County was a known informant, that the information was provided
by the informant that a deal was going to occur in Bucks County.
The police monitored the contact between the confidential
informant and an individual identified as Mr. Derry. . . . and that
the police were able to confirm a number of allegations that were
being made by that informant sufficient to establish the reliability
of that informant; specifically, the source, the type of controlled
substance, the source of the controlled substance, the location of
the delivery, the time of the delivery, and the individuals involved
as well as the vehicle involved.
I find that while it was a close call, I find that the police actions in
taking and stopping [Appellant] and advising him that he was,
quote, end quote, being detained, was not an arrest, that he was
– that that was investigatory detention for [Appellant] to be
investigated and some subsequent investigation to be conducted.
Id. at 7-8.
The Appellant then proceeded to a stipulated bench trial on that same
date and was convicted of the above-listed counts. On the same day, the trial
court sentenced Appellant to the aforementioned judgment of sentence. On
August 1, 2018, Appellant filed this timely direct appeal.3
Appellant presents the following issue(s) for our review:
1. Whether the [t]rial [c]ourt erred by concluding that
[Appellant] was merely subjected to an investigative detention
rather than a custodial arrest by police while inside of the
Applebee’s?
____________________________________________
3 On August 30, 2018, Appellant filed his timely statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed
its opinion pursuant to Pa.R.A.P. 1925(a) on December 20, 2018.
Subsequently, Appellant filed a motion with this Court to permit him to file a
supplemental Rule 1925(b) Statement, which this Court granted. Appellant
filed a timely supplemental Rule 1925(b) Statement on March 12, 2019. The
trial court filed its supplemental Rule 1925(a) opinion on May 29, 2019.
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2. Whether the [c]ourt erred in denying suppression insomuch
as the arrest was not supported by probable cause as law
enforcement were acting on vague and uncorroborated
information from a confidential source that had yet to be proven
reliable?
3. Whether the [t]rial [c]ourt erred by denying [Appellant’s]
motion to suppress physical evidence because under the totality
of the circumstances law enforcement lacked reasonable suspicion
to effectuate an investigative detention as they were acting on
vague and uncorroborated information received from a
confidential source that had yet to be proven reliable?
4. Whether the [t]rial [court] erred in denying [Appellant’s]
motion to suppress as law enforcement failed to adduce specific,
articulable reasons to believe that [Appellant] was armed and
dangerous thereby justifying a frisk?
5. Whether the [t]rial [c]ourt abused its discretion in denying
the motion for reconsideration of sentence without first allowing
[Appellant] to offer the mitigating evidence proffered by counsel
in the motion?
Appellant’s Brief at 9.
Appellant’s first three issues on appeal necessitate an analysis of his
encounter with police inside the Applebee’s. Appellant argues the encounter
was the functional equivalent of an arrest and the police lacked probable cause
to make that arrest. Appellant urges this Court to conclude that “the
suppression court erred that Appellant was subjected to an investigative
detention rather than a seizure inside of the Applebee’s Restaurant.”
Appellant’s Brief at 15. Appellant argues that totality of the circumstances
clearly establish that Appellant was in the functional equivalent of custody
while inside of the restaurant. Appellant argues that this arrest was not
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supported by probable cause. Appellant argues, in the alternate, that the
investigative detention was not supported by reasonable suspicion.
We consider Appellant's suppression issues in light of the following
standard of review:
In reviewing the denial of a suppression motion, our role is to
determine whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court’s factual
findings are supported by the record, we are bound by these
findings and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and
internal brackets omitted). Our scope of review from a suppression ruling is
limited to the evidentiary record created at the suppression hearing.
Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).
The trial court determined that Appellant was subjected to an
investigative detention inside the Applebee’s. N.T. 6/25/18 at 7-8.
In evaluating the interaction between Appellant and the police inside the
Applebee’s we start with the fact that,
[t]he law recognizes three distinct levels of interaction between
police officers and citizens: (1) a mere encounter; (2) an
investigative detention ...; and (3) a custodial detention. A mere
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encounter can be any formal or informal interaction between an
officer and a citizen. The hallmark of this interaction is that it
carries no official compulsion to stop or respond. A mere
encounter does not need to be justified by any level of police
suspicion. [A]n ‘investigative detention’ ... carries an official
compulsion to stop and respond. Because an investigative
detention has elements of official compulsion it requires
reasonable suspicion of unlawful activity. [A] custodial detention
occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest. A custodial
detention requires that the police have probable cause to believe
that the person so detained has committed or is committing a
crime.
Commonwealth v. Dix, 207 A.3d 383, 388 (Pa. Super. 2019), appeal denied,
No. 211 EAL 2019, 2019 WL 4164778 (Pa. Sept. 3, 2019) (internal citations
and quotation marks omitted). “The key difference between an investigative
detention and a custodial detention is that the latter involves such coercive
conditions as to constitute the functional equivalent of an arrest.”
Commonwealth v. Gonzalez, 979 A.2d 879, 887 (Pa. Super. 2009) (internal
citation and quotation marks omitted).
In determining whether a detention is investigative or custodial, courts
are to consider:
The basis for the detention (the crime suspected and the grounds
for suspicion); the duration of the detention, the location of the
detention (public or private); whether the suspect was
transported against his will (how far, why); and, the investigative
methods used to confirm or dispel suspicions.
Commonwealth v. Smith, 172 A.3d 26, 32 (Pa. Super. 2017) (citation
omitted). “The handcuffing of a suspect, by itself, does not convert an
investigative detention into an arrest.” Id. In addition, “it must be
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remembered that every [investigative detention] involves a stop and period
of time during which the suspect is not free to go but is subject to the control
of the police officer detaining him.” Commonwealth v. Rosas, 875 A.2d
341, 348 (Pa. Super. 2005) (citation and quotation marks omitted).
In determining Appellant was subjected to an investigatory detention
inside the Applebee’s, the trial court opined,
Based on the fact that [Appellant] was detained for only a brief
period of time in order to confirm that he was the individual who
met with the other suspect, that he was detained in a public place,
that he was only moved a short distance and that the police acted
quickly to confirm their suspicions with a minimal use of force, this
Court found that [Appellant’s] initial detention at the scene
constituted an investigatory detention. The fact that [Appellant]
was handcuffed inside the restaurant, does not alone convert an
investigative detention into an arrest.
TCO, 5/29/19 at 5 (citations omitted). We find no error in the trial court’s
conclusion of law that Appellant was subjected to an investigative detention
and not an arrest inside the Applebee’s restaurant. This conclusion is
consistent with relevant case law providing that a public detention of limited
duration is not an arrest merely because the suspect is placed in handcuffs.
Smith, 172 A.3d at 32. Furthermore, the trial court’s findings are supported
by the record. N.T. 6/20/17 at 41, 64-67, 69-71, 73-75; See Fulton, 179
A.3d at 487; Yim, 195 A.3d at 926.
Appellant’s third issue is that the trial court erred in determining that
police had reasonable suspicion to conduct an investigatory detention inside
the Applebee’s. The court opined,
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[t]he information was provided by a known informant. . . The
informant’s information was based on first-hand knowledge. The
informant arranged the drug purchase in the presence of police
and produced photographs of the marijuana and one of the
vehicles sent to his telephone while the sale was being arranged.
Police surveillance thereafter confirmed the informant’s
information in all material respects. Gunnar Derry arrived at the
time and location that had been prearranged. An Asian male
driving a BMW that matched the description of the vehicle that
would be driven by Derry’s supplier also arrived at the time and
location that had been prearranged. Upon their arrival, the two
men immediately met up and began circling the parking lot. The
information provided by the informant and the observations of
police, taken in conjunction with the reasonable inferences an
experienced narcotics detective could properly derive from all the
facts and circumstances known to him, were clearly sufficient to
allow police to reasonably conclude that criminal activity was
afoot. [Appellant’s] motion to suppress was therefore properly
denied.
TCO, 12/20/18 at 6-7. Additionally, the confidential informant further advised
Officer Gansky that Derry’s “source” would also be arriving [at the
Applebee’s]. N.T. 6/20/17 at 8. Officer Gansky understood that to mean that
“Gunner Derry was acting like the middle-man in this drug transaction, and
his source of the marijuana was this Asian man.” Id. Gunnar Derry’s source
was described as an Asian male and would be driving a white-colored BMW
with rims. Id. Officer Gansky was assigned to the special investigations unit
where he investigated narcotics crimes for six years. Id. He assisted and
investigated numerous defendants related to selling drugs and usage of drugs,
attending training specifically on drug trafficking and techniques and
identification put on by the state, local and federal level. Id. at 6. He was
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involved with over 200 cases that involved the use of a confidential informant
and controlled drug buys. Id. 6-7.
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved in
that activity. 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 intrusion warrant a
[person] of reasonable caution in the belief that the action taken
was appropriate.
[T]he 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 there was a
particularized and objective basis for suspecting the individual
stopped of criminal activity.
In making this determination, we must give due weight...to the
specific reasonable inferences the police officer is entitled to draw
from the facts in light of his experience. Also, the totality of the
circumstances test does not limit our inquiry to an examination of
only those facts that clearly indicate criminal conduct. Rather,
even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
Commonwealth v. Luczki, 212 A.3d 530, 544-45 (Pa. Super. 2019)
(internal citations and quotation marks 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. Barber,
889 A.2d 587, 593 (Pa. Super. 2005).
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
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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.
Id. at 593-94. “Though not strict requirements, these factors [the veracity of
the informant, the reliability of the informant, and the informant’s basis of
knowledge] help determine how much faith law enforcement can place in the
information they are given.” Commonwealth v. Griffin, 954 A.2d 648, 651
(Pa. Super. 2008) (internal citation omitted).
First, the veracity of the informant may be partly assessed by
whether the identity of the informant is known to the police or
whether the tip is anonymous. An anonymous tip is to be treated
with particular suspicion, and may not provide a basis for a[n
investigative detention] in situations in which information from a
known informant would. A person whose identity is known to the
police is far less likely to provide false information out of fear of
reprisal. Our Supreme Court has explained the distinction,
saying: “a known informant places himself or herself at risk of
prosecution for filing a false claim if the tip is untrue, whereas an
unknown informant faces no such risk.”
Second, the Pennsylvania Supreme Court has also provided
guidance on assessing the reliability of the information. If an
informant is able to provide details about the “future actions not
ordinarily easily predicted[,]” then the information is considered
to have a higher degree of reliability. This ability to predict future
events is relevant because “only a small number of people are
generally privy to an individual's itinerary, [and] it is reasonable
for police to believe that a person with access to such information
is likely to also have access to reliable information about that
individual's illegal activities.”
Basis of knowledge, the third factor, refers to how the informant
obtained the information. The more intimate the basis of
knowledge, the more likely the information is to be trustworthy.
These factors serve as a starting point for our analysis. However,
in a totality of the circumstances test, other factors may also be
taken into account to form the basis of a[n investigative
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detention]. Innocent facts, when taken together, may combine to
give a police officer reasonable suspicion. Moreover, we must give
“due weight ... to the specific reasonable inferences [the police
officer] is entitled to draw from the facts in light of his experience.”
Id. at 651-52.
We find no error in the trial court’s conclusion of law that police had
reasonable suspicion to conduct an investigative detention of Appellant inside
the Applebee’s restaurant. See also Commonwealth v. Gutierrez, 36 A.3d
1104 (Pa. Super. 2012) (reasonable suspicion found where known informant
gave predictive information that forecasted the movement of the suspect in
question by placing him at a particular time and place, driving a specific
vehicle, and that information was corroborated by police investigation).
Furthermore, the trial court’s factual findings are supported by the record at
the suppression hearing. N.T. 6/20/17 at 15, 17-22, 11-14; Exhibit CS-1, CS-
2; See Fulton, 179 A.3d at 487; Yim, 195 A.3d at 926.
Appellant’s fourth issue on appeal is that the police were not justified to
frisk and search him inside the Applebee’s. The trial court stated, “[t]he
question of whether police properly frisked [Appellant] following his initial
detention was not raised in [Appellant’s] pre-trial motion to suppress evidence
or otherwise addressed.” TCO, 12/20/18 at 7. “The only suppression issue
presented to this [c]ourt was the legality of his detention.” Id. After a careful
review of the record, we agree with the trial court. Issues not raised at the
trial court level are waived and cannot be raised for the first time on appeal.
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Pa.R.A.P. 302(a). As Appellant did not raise the issue below, it is waived for
the purposes of appeal. See id.
Appellant’s fifth issue is that “the trial court abused its discretion in
denying the motion to reconsider without first allowing [Appellant] to offer the
mitigating evidence proffered by counsel in the motion.” Appellant’s Brief at
9. The trial court opined,
[t]he only evidence proffered in mitigation was that “[a]fter his
arrest but prior to sentencing, [Appellant] began working a full
time job.” Post-Sentence Motion, at 5. The decision as to whether
to schedule a hearing on a defendant’s post-sentence motion lies
within the discretion of the trial court. Pa.R.Crim.P. 720(B)(2)(b).
In the instant case, this Court imposed sentences in the standard
range of the sentencing guidelines despite the existence of several
aggravating sentencing factors. N.T. 6/25/18 at 47-60. The fact
that he obtained employment after his arrest was not evidence
that would impact the sentence imposed under the facts and
circumstances of this case.
TCO at 7-8. “The judge should . . . determine whether a hearing or argument
on the [post-sentence] motion is required, and if so, shall schedule a date or
dates certain for one or both.” Pa.R.Crim.P. 720(B)(2)(b). “There is no
requirement that oral argument be heard on every post-sentence motion.”
Pa.R.Crim.P. 720, Comment. Appellant filed a timely post-sentence motion.
The trial court reviewed the motion, determined a hearing was not required,
and denied the motion. The trial court acted within its power and discretion
in denying the motion without a hearing. Appellant’s suggestion that the trial
court was required to schedule a hearing or argument on his post-sentence
motion lacks merit.
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Accordingly, Appellant’s judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/19
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