Com. v. Culmer, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MALIK CULMER,
Appellant No. 2762 EDA 2014
Appeal from the Judgment of Sentence August 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-3681-2012
BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 14, 2015
Malik Culmer appeals from the judgment of sentence imposed
following his conviction for possession of a controlled substance. He
specifically challenges the trial court’s denial of his motion to suppress drugs
recovered by the arresting officers. For the reasons set forth herein, we
affirm.
The trial court summarized the facts as follows:
Officer Michael Guinter testified that on January 22, 2012
at around 11 a.m. he was on duty with his partner, Officer
Bocelli, in the area of the 700 block of Emily Street in the City of
Philadelphia. Officer Guinter stated that he, as the driver, and
his partner, as a passenger, were traveling northbound at less
than five (5) miles per an hour in an unmarked vehicle and in
plainclothes on the 200 block of 7th Street. At the corner of 7th
Street and Emily Street, Officer Guinter observed from ten (10)
to fifteen (15) yards away, a green Buick half-parked on the
sidewalk facing the Officer's direction with a black male,
*
Former Justice specially assigned to the Superior Court.
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identifying the Defendant, seated in the driver seat. Next to the
Buick was a smaller silver sedan also facing in the officer's
direction, with two individuals, a white male driver seated inside
and a white male standing outside between the two vehicles.
Officer Guinter stated that he observed the white male,
with U.S. currency in his hand, lean into the green Buick and
exchange the currency for small objects from the Defendant.
Officer Guinter stated that he saw small objects exchanged, but
could not specify what was passed. He testified that he believed
this exchange to be a narcotics transaction based on his seven
(7) years of experience as a police officer working in the Third
(3d) District for that entire amount of time. Officer Guinter
stated that he has made approximately three hundred and fifty
(350) narcotics arrests in the district and that the immediate
location is known for being a high crime and drug-ridden area.
After observing the transaction, both Officer Guinter and
his partner stopped and exited their vehicle. After Officer
Guinter identified himself as a police officer, the Defendant
exited his vehicle and fled westbound on Emily Street by foot.
Officer Guinter chased the Defendant for about two (2) blocks,
lost sight of him for twenty (20) seconds when the Defendant
made a turn onto Snyder Avenue, and found him hiding
underneath a van on the 700 block of Snyder Avenue.
Officer Guinter testified that he pulled the Defendant out
from underneath the vehicle, and upon searching him, recovered
seven hundred and forty-two dollars ($742) U.S. currency from
the Defendant's front left pant pocket. After returning to the
scene of the alleged transaction, Officer Guinter stated that he
was able to see a clear bag with multiple small pink Ziploc bags
inside, which he believed to be crack cocaine, on the floor of the
driver's side from outside of the Defendant's vehicle. Officer
Guinter recovered the bags which were later identified to contain
crack cocaine. Both the items and the U.S. currency recovered
were placed on property receipts. Officer Guinter testified that
the white males and the silver sedan were no longer on the
scene when he returned with the Defendant. He further stated
that his partner had jumped into the unmarked police vehicle to
follow him upon the Defendant's flight.
Trial Court Opinion, 2/6/15, at 2-4.
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Appellant was initially charged with possession with intent to deliver
(“PWID”) and possession of a controlled substance. On April 24, 2013,
Appellant filed an omnibus pre-trial motion which requested, inter alia, that
the trial court suppress physical evidence seized on Appellant’s person and
in his vehicle. Omnibus Pre-trial Motion, 4/24/13, at 2. Specifically,
Appellant argued that the items were seized “without a search and seizure
warrant and without the existence of exigent circumstances or probable
cause.” Id. The trial court held a suppression hearing and denied
Appellant’s motion on April 30, 2014. Following a nonjury trial, Appellant
was found guilty of possession of a controlled substance. The court
sentenced Appellant to one year probation on August 21, 2014.
Appellant filed a 1925(b) statement of errors complained of on appeal,
and the trial court issued its responsive 1925(a) opinion. On appeal,
Appellant raises one issue:
Whether the Trial Court erred in denying Appellant’s Motion to
Suppress $742.00 and 13 pink packets of crack cocaine where
the seizing officer, Officer Guinter, lacked probable cause to
chase Appellant, “pull him out” from under a parked vehicle NT
21, and search him, recovering $742.00 from the defendant’s
person and then extending the taint of illegal seizure to the
search of a vehicle wherein the officer found 13 pink packets of
cocaine.
Appellant’s brief at 5.
Appellant’s sole issue challenges the trial court’s denial of his motion
to suppress. Our well-settled standard of review in these matters is “limited
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to determining whether the suppression court's factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa.Super.
2014) (citation omitted). In doing so, we consider the Commonwealth's
evidence and any of the defendant’s evidence that remains uncontradicted.
Id. Where this Court agrees that the findings of the suppression court are
supported by the record, “we are bound by these findings and may reverse
only if the court's legal conclusions are erroneous.” Id. Legal conclusions
based on those facts, however, are not binding on this Court and are subject
to plenary review. Id.Herein, Appellant argues that Officer Guinter lacked probable cause to
chase Appellant, which led to the recovery of $742 in cash and, eventually,
several Ziploc bags containing crack cocaine. He contends that the officer’s
observation of a single transaction, even coupled with Appellant’s flight, did
not create probable cause for the officer’s subsequent search of Appellant
and the vehicle. In the alternative, Appellant argues that the trial court’s
contention that reasonable suspicion ripened into probable cause upon flight
is erroneous because Appellant’s flight “was in response to actions of seizure
by the arresting officer” and did not indicate guilt. Appellant’s brief at 11.
The Commonwealth responds that Appellant’s single issue is waived,
as the issue presented in his 1925(b) statement is incongruous with the one
argued in his brief. It then proceeds to argue that, if reviewable, Appellant
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is entitled to no relief. As the initial interaction between Appellant and police
was a mere encounter, the Commonwealth suggests, Appellant was not
seized. Even if he was, the experienced Officer Guinter’s observation of
Appellant’s participation in a drug transaction in a high crime area afforded
probable cause for a search and seizure. Consequently, the suppression
court properly denied Appellant’s motion to suppress the physical evidence.
We reject the Commonwealth’s waiver argument; nonetheless, we find
Appellant’s argument meritless. For the reasons that follow, we affirm. We
address the characterization of both the initial interaction between Appellant
and Officer Guinter and the ultimate search and seizure of Appellant and the
car. As this Court has explained, “courts require police to articulate the
basis for their interaction with citizens in [three] increasingly intrusive
situations.” Commonwealth v. Clemens, 66 A.3d 373, 378-79 (Pa.Super.
2013). Our High Court has described those three situations:
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[, 392 U.S. 1 (1968),] 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.
Id. (citing Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003)).
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Herein, upon witnessing what he believed to be a narcotics
transaction, Officer Guinter and his partner exited their vehicle and, “[b]y
show of badge and verbally,” identified themselves as police officers, and
walked toward the vehicle. N.T., 4/30/14, at 9, 19. At that point, Appellant
“exited his vehicle and fled[.]” Id. Notably, Officer Guinter did not testify
that he either ordered Appellant to stop prior to flight or compelled him to
answer any inquiries. This initial interaction was a lawful investigative
detention, which was supported by reasonable suspicion following Officer
Guinter’s observation of Appellant’s transaction. See Commonwealth v.
Nguyen, 116 A.3d 657 (Pa.Super. 2015) (acknowledging that an
investigative detention must be supported by reasonable suspicion of
unlawful activity).
Affording relief to Appellant therefore rests upon this Court finding
that, after his flight from the vehicle, Officer Guinter lacked probable cause
to seize Appellant and search his person and the vehicle. We cannot make
such a finding. “The police have probable cause where the facts and
circumstances within the officer’s knowledge are sufficient to warrant a
person of reasonable caution in the belief that an offense has been or is
being committed.” Commonwealth v. Caban, 60 A.3d 120, 127
(Pa.Super. 2012) (citations omitted).
In addition to his testimony regarding his initial interaction with
Appellant, Officer Guinter testified to the following facts, which were not
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contradicted by Appellant. While slowly patrolling the 700 block of Emily
Street in plainclothes in an unmarked police vehicle, Officer Guinter and his
partner observed from just 30 feet away what he believed to be Appellant’s
participation in a drug transaction. N.T., 4/30/14, at 6-8. As noted,
Appellant exited his vehicle and fled when the officers identified themselves.
He was apprehended while hiding under a nearby vehicle. Id. at 9.
Officer Guinter had been a Philadelphia police officer for seven years,
spending that entire term in the 3rd District, where this transaction occurred.
Id. at 11. He had made approximately 350 narcotics arrests during his
tenure and knew that the 3rd District “is a very high crime and drug-ridden”
area. Id. Based on this experience, he believed he witnessed a drug
transaction.
While Appellant relies heavily on Commonwealth v. Banks, 658 A.2d
752 (Pa. 1995), and its progeny for the contention that just one transaction
coupled with flight does not support probable cause, such reliance is
misplaced. Indeed, our High Court’s decision in Commonwealth v.
Thompson, 985 A.2d 928 (Pa. 2009), requires us to review the facts
presented through the lens of the arresting officer’s knowledge and
experience. As in Thompson, the presence herein of factors additional to
Officer Guinter’s years of knowledge and experience, including his
observations, Appellant’s flight, and the prevalence of drug crime in the
area, led to the officer’s conclusion that he witnessed a drug transaction.
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Accordingly, we find that the trial court properly relied on the totality of the
circumstances in finding that Officer Guinter had probable cause to seize and
search Appellant’s person. See Commonwealth v. Ventura, 975 A.2d
1128 (Pa.Super. 2009) (noting that Pennsylvania recognizing a lawful arrest
as authorization to search an arrestee).
Appellant does not challenge whether Officer Guinter had probable
cause to search his vehicle in the event that his seizure was lawful, alleging
only that any search of the vehicle was “fruit of the poisonous tree.”
Appellant’s brief at 11. As we find that the officer had probable cause to
search Appellant and further acknowledge that Officer Guinter’s testimony
that the Ziploc bags containing cocaine were in plain view from outside
Appellant’s vehicle went uncontradicted, we need not separately analyze the
legality of any purported search of Appellant’s vehicle.
We need only briefly address Appellant’s “alternative perspective,”
which is that Appellant fled in response to Officer Guinter’s “actions of
seizure” in approaching the vehicle. Appellant’s brief at 11. This argument
is contingent upon this Court viewing the evidence of flight and its
surrounding circumstances in a light most favorable to Appellant, which
violates our standard of review. See Clemens, supra at 380 (declining to
view evidence in light most favorable to defendant where record supports
finding of suppression court). Accordingly, we will not do so, as the record
herein supports the findings of the suppression court.
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Having found that Officer Guinter had probable cause to search
Appellant and that additional physical evidence was properly recovered from
his vehicle, we find that the suppression court’s denial of appellant’s motion
to suppress was proper.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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