Com. v. Coleman, S. ( 2014 )

J-S63008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAHEED COLEMAN,
Appellant No. 377 MDA 2014
Appeal from the Judgment of Sentence January 24, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003784-2012
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 15, 2014
Shaheed Coleman appeals from the judgment of sentence of five to
ten years incarceration imposed by the trial court after it found him guilty of
possession with intent to deliver (“PWID”) heroin and possession of a
controlled substance. We affirm.
On August 26, 2012, Officer Robert Collins of the Wilkes-Barre police
department observed Appellant seated in the driver’s side of a parked
vehicle with another individual leaning into the passenger side of the car
with the car door open. The location is known as a high crime and drug
area. Officer Collins exited his own car and approached the vehicle.
Officer Collins asked Appellant, “What’s happening?” N.T., 7/11/13, at 6.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S63008-14
Appellant responded that he was talking with his friend, the passenger.
Officer Collins asked Appellant where his friend lived and Appellant replied
that his friend lived on South Welles Street, Wilkes-Barre. The passenger,
however, now seated in the passenger side of the car with the door open,
informed Officer Collins that he resided in Plymouth, Pennsylvania.
Officer Collins noticed that both men appeared nervous and that a large
bulge was evident in the passenger’s right front pants pocket. In addition,
Officer Collins saw the passenger reaching in the area of the bulge.
Accordingly, Officer Collins asked the passenger to stop moving.
Officer Collins then inquired with both men if there was anything illegal
in the car. Neither man responded. Thereafter, Officer Collins asked the
passenger to exit the car and subjected him to a pat-down search. Upon
doing so, Officer Collins immediately felt the presence of a gun. He then
recovered a loaded 9 mm pistol. In addition, Officer Collins seized a
package of suspected heroin.
Based on these findings, Officer Collins placed the passenger under
arrest. As he did so, Officer David Morris arrived on the scene.
Officer Morris witnessed Appellant making furtive movements inside the
vehicle by reaching for his waist and making additional movements
consistent with concealing an item. As a result, Officer Morris asked
Appellant to alight from the car. Officer Morris next performed a pat-down
search of Appellant. In patting down Appellant, Officer Morris felt an item
that appeared to be a handgun. However, the item was seven bricks of
-2-
J-S63008-14
heroin bundled in an L-shape. Accordingly, the officer placed Appellant
under arrest. Police recovered three cell phones from the car, and also
seized $1,080 from Appellant’s front left pants pocket and $400 from his
wallet.
Appellant filed a motion to suppress the evidence. After the conclusion
of a suppression hearing, the suppression court found that the interaction
between the officers and Appellant began as a mere encounter. It then
ruled that this ripened into an investigative detention based on reasonable
suspicion. The court held that the pat-down search of Appellant was lawful
and suppression was unwarranted.
Appellant proceeded to a non-jury trial. The court adjudicated
Appellant guilty of the aforementioned offenses. Thereafter, the court
sentenced Appellant to five to ten years incarceration. Appellant timely
appealed. The court directed Appellant to file and serve a concise statement
of errors complained of on appeal. Appellant complied, and the trial court
penned its opinion. The matter is now ready for this Court’s review.
Appellant presents one issue for our consideration.
I. Whether the finder of fact erred in determining that at the
initiation of Appellant’s detention Appellee had specific,
individualized facts constituting reasonable suspicion or
probable cause, under the Fourth Amendment of the
United States Constitution and Article I[,] § 8 of the
Pennsylvania Constitution, to stop and detain Appellant or
believe that he was engaged in criminal activity.
Appellant’s brief at 4.
-3-
J-S63008-14
In evaluating a suppression ruling, we consider the evidence of the
Commonwealth, as the prevailing party below, and any evidence of the
defendant that is uncontradicted when examined in the context of the
suppression record. Commonwealth v. Sanders, 42 A.3d 325, 330
(Pa.Super. 2012). This Court is bound by the factual findings of the
suppression court where the record supports those findings and may only
reverse when the legal conclusions drawn from those facts are in error. Id.Appellant argues that Officer Collins’ “actions constituted a ‘seizure’
and not a mere encounter.” Appellant’s brief at 9. He maintains that Officer
Collins’ question, “What’s happening?” followed by additional questions was
an investigative detention. In his view, “no reasonable person would have
felt free to terminate the encounter with Officer Collins and depart the
scene.” Id. Appellant continues that Officer Collins lacked reasonable
suspicion to conduct an investigative detention and that he “offered no
particularized objective basis for believing that either of the men were
engaged in any criminal activity.” Id. at 11.
The Commonwealth responds that Officer Collins’ initial approach and
question to Appellant was a mere encounter. It maintains that once
Appellant’s friend was arrested, he could be frisked as the arrestee’s
companion since Appellant made furtive movements “as if he was concealing
something in his waist band[.]” Commonwealth’s brief at 8.
-4-
J-S63008-14
In evaluating interaction between law enforcement and other citizens,
Pennsylvania courts look to whether the interaction is a mere encounter, an
investigatory detention, or a custodial detention, i.e., an arrest. The latter is
not in question herein. A mere encounter does not require police to have
any level of suspicion that the person is engaged in wrongdoing.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.Super. 2012). At the
same time, such an encounter does not carry any official compulsion for the
party to stop or respond. Id. An investigative detention, however, subjects
an individual to a stop and short period of detention. Id. This seizure does
not involve actions that are so coercive as to comprise the equivalent of an
arrest. Id. To conduct an investigative detention, police must have
reasonable suspicion of criminal activity. Id. We determine what level of
interaction occurred under a totality of the circumstances test.
Commonwealth v. Williams, 73 A.3d 609, 615-616 (Pa.Super. 2013).
We agree with the Commonwealth that Officer Collins’ initial approach
of Appellant was a mere encounter. Officer Collins was originally alone, did
not display his weapon, or make any show of force. He neither used his car
to prevent Appellant from leaving, nor activated his lights or siren. Rather,
he simply approached and asked a question. Appellant’s reliance on
Commonwealth v. Dales, 830 A.2d 807 (Pa.Super. 2003), for the
proposition that Officer Collins’ continued questions resulted in an
investigative detention is unpersuasive. Dales is wholly dissimilar factually.
-5-
J-S63008-14
It involved a vehicle stop with multiple police officers. The reason for the
initial stop, tinted windows, had concluded. However, the officer continued
to question the defendant therein.
Appellant’s contention that this case is analogous to Commonwealth
v. Jones, 378 A.2d 835 (Pa. 1977), and Commonwealth v. DeWitt, 608
A.2d 1030 (Pa. 1992), is equally unavailing. Jones involved an unusual set
of circumstances. Initially, police responded to a call regarding Jones’
alleged discovery of his deceased aunt. The next day police traveled to
Jones’ residence to conduct additional questioning; however, Jones had fled
the area. Police issued an arrest warrant after discovering a stolen firearm
that same day. Two days later, Jones was picked up in Missouri by Missouri
highway police. Specifically, the officer stopped his police car and asked
Jones for identification. After Jones provided the identification, the officer
directed him to be seated in the back of the officer’s car. He then conducted
a check and discovered the outstanding arrest warrant. The officer then
asked Jones to exit the vehicle at which point Jones admitted to having a
gun.
The suppression court suppressed the gun from the stop and
additional statements Jones made to the officer. The Commonwealth
appealed, and the Supreme Court affirmed. In doing so, it found that the
officer’s placement of Jones in the backseat of the police car after asking for
identification subjected Jones to a stop that was not supported by
-6-
J-S63008-14
reasonable suspicion. Here, Officer Collins did not direct Appellant’s
movement or sit him in his police car. Jones is inapposite.
In DeWitt, Pennsylvania State Police witnessed a car parked partially
in a parking lot of a church and partly on the berm of a road. The car was
facing in the opposite direction of travel and did not have its exterior lights
illuminated. The interior lights of the car were on, and police had been
notified by the church on prior occasions to check for suspicious vehicles.
The state police officers pulled their vehicle alongside the vehicle, which then
began to pull away. Those inside the car also turned off the interior lights.
The officers stopped the car. Inside the car, in plain view, the troopers saw
beer, cocaine, and a marijuana cigarette. The DeWitt Court held that the
initial vehicle stop was illegal.
Unlike DeWitt, Officer Collins did not stop Appellant’s vehicle as he
attempted to leave since Appellant never sought to leave. Officer Collins’
walking up to the car without turning on his siren or overhead lights and
asking Appellant what was happening was not an investigative detention.
Appellant’s investigative detention did not arise until after his companion
was arrested. DeWitt is not controlling.
Having determined that Officer Collins’ initial interaction with Appellant
was not an investigative detention, we now analyze whether the subsequent
events led to reasonable suspicion to justify the later Terry frisk. A Terry
frisk is permissible of an arrestee’s companion where there is reasonable
-7-
J-S63008-14
suspicion that the companion is armed and dangerous. Commonwealth v.
Jackson, 907 A.2d 540, 545 (Pa.Super. 2006). Instantly, Appellant and his
companion were in a high crime area. Appellant’s friend was found with a
loaded 9 mm handgun. Appellant made furtive movements consistent with
concealing something as Officer Morris approached, and acted nervously
throughout his encounter with Officer Collins. Appellant and his companion
gave inconsistent responses as to where Appellant’s friend lived. In light of
these circumstances, we find that the suppression court did not err in
concluding that the totality of the circumstances supported the Terry frisk.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2014
-8-