Com. v. Fuller, T. ( 2017 )

J-S57019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRENCE FULLER, :
:
Appellant : No. 484 EDA 2017
Appeal from the Judgment of Sentence January 19, 2017
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003819-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 19, 2017
Terrence Fuller (“Fuller”), pro se,1 appeals from the judgment of
sentence entered following his conviction of two counts each of possession of
a controlled substance, possession with intent to deliver a controlled
substance, and use of drug paraphernalia.2 We affirm.
In its Opinion, the trial court summarized the factual and procedural
history underlying the instant appeal, which we adopt as though fully
restated herein. See Trial Court Opinion, 5/4/17, at 1-3.
Fuller presents the following claims for our review:
____________________________________________
1Fuller was permitted to proceed pro se, following a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2 35 P.S. § 780-113(a)(16), (30), (32).
J-S57019-17
1. Did the suppression court err as a matter of law by
concluding that [Fuller] was subjected to an investigative
detention and not a mere encounter[,] which ripened to a
warrantless arrest with probable cause?
2. Was Officer [Carl] Robinson[, Jr.’s (“Officer Robinson”)]
reasonable suspicion for detaining [Fuller] based on a mere
hunch?
Brief for Appellant at 4.
In his appellate brief, Fuller addresses his challenges to the denial of
his suppression Motion together. Fuller claims that the trial court improperly
denied his Motion to suppress the evidence seized following his detention.
Id. at 14. According to Fuller, there was no weapon involved in the simple
assault being investigated by police. Id. at 10. Further, police officers
never told him why he was being detained, and the officers should have
brought the victim of the assault to the scene for identification purposes.
Id. at 11. Fuller argues that as he lawfully exited the back seat of a vehicle,
he was immediately told to raise his hands and get on the ground, and then
was placed in handcuffs. Id. Fuller asserts that “this was not an
investigatory detention that ripened into probable cause[,]” and that “any
reasonable [sic] minded person would believe that they are under arrest.”
Id. Fuller contends that the police officer’s observation was based on
nothing more than a “hunch,” and that simply moving around in the back
seat of a vehicle does not give rise to a reasonable suspicion of criminal
activity. Id. at 12. Fuller points out that he was not charged or identified as
a suspect in the simple assault, that the vehicle in which he was a passenger
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was legally parked, and that Officer Robinson testified that he detained
Fuller based on a “hunch.” Id. at 12-13. Under these circumstances, Fuller
claims that the evidence seized from the vehicle should have been
suppressed. Id. at 14.
In its Opinion, the trial court set forth the appropriate standard of
review, addressed Fuller’s claims, and concluded that they lack merit. See
Trial Court Opinion, 5/4/17, at 4-6. We agree with the sound reasoning of
the trial court, as set forth in its Opinion, and affirm on this basis as to
Fuller’s claims of error. See id. We additionally point out, in detail, the
evidence supporting the trial court’s determination that Officer Robinson had
conducted an investigatory stop of Fuller, supported by reasonable
suspicion, and a protective sweep of the vehicle.
At the suppression hearing, Norristown Police Officer Kevin Fritchman
(“Officer Fritchman”) testified that, while patrolling in his vehicle, he
observed an older male being punched by two other males. N.T., 1/17/17,
at 7. Upon stopping his vehicle, two of the males “took off running.” Id.
Upon Officer Fritchman’s inquiry, the older man told Officer Fritchman that
he had been assaulted. Id.
Officer Fritchman described one of the two assailants as a short, black
male with a large beard. Id. Officer Fritchman followed the two assailants
in his vehicle. Id. at 8. While doing so, Officer Fritchman “called it out on
the radio that I just witnessed an assault.” Id. Officer Fritchman indicated
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that the two men “ran westbound towards Church Street and they made a
right onto Church going north.” Id. Over the radio, Officer Fritchman
described the one assailant as a short, black male with a large beard. Id.
at 8-9. When Officer Fritchman turned his vehicle onto Church Street, the
two men were no longer visible. Id. at 9. Thereafter, Officer Fritchman
came upon the location where Officer Robinson had stopped Fuller. Id. at
10. Officer Fritchman observed Fuller exit from the vehicle, and further
observed Officer Robinson walk up to that vehicle. Id.
Officer Robinson testified as to his background and credentials for
“[d]rug training and violent crime training.” Id. at 19. Officer Robinson
testified that he had heard Officer Fritchman’s radio description of having
witnessed two black males “beating up another black male at the corner of
East Marshall and Dekalb Street.” Id. at 20. According to Officer Robinson,
Officer Fritchman stated that a shorter black male with a full beard “took off
running west towards Church Street.” Id. Officer Robinson then heard
Officer Fritchman state his belief that one of the subjects “ran out to the 600
block of Swede Street.” Id. at 21. When Officer Robinson drove onto the
600 block of Swede Street, he observed a silver Chrysler PT Cruiser parked
on the west side of the street, with its lights off and three subjects in the
car. Id. Officer Robinson described the vehicle’s occupants as “a white
female, an older black male, and a black male with a full beard in the back
seat.” Id. There is no evidence that Fuller owned the vehicle.
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Officer Robinson pulled his vehicle in front of the parked PT Cruiser,
with his headlights shining into the vehicle. Id. at 21-22. When he did so,
he observed Fuller, sitting in the back passenger seat, bending down
towards the floor “like he was concealing something under the front
passenger seat.” Id. at 22, 23. Officer Robinson stated that he and Fuller
exited their vehicles at the same time. Id. at 43. As Fuller began walking
away from Officer Robinson, the officer drew his weapon and ordered Fuller
to “come here,” and then ordered Fuller to get down on the ground. Id. As
soon as Officer Fritchman arrived at the scene, Officer Robinson testified
that he “went to the back seat of the car where I saw him reaching around
and I immediately observed two sandwich bags. One contained a large
quantity of crack cocaine and the other one had packets of heroin and
powder cocaine in it.” Id. at 22. Officer Robinson testified that he was
concerned for his safety, as Fuller “might have stashed a weapon under the
front seat of that car.” Id. at 23. The Commonwealth then presented a
video recording from the police vehicle’s dash camera. Id. at 23-34. Officer
Robinson narrated the video, which depicted Fuller bending down towards
the floor of the vehicle. Id. at 32. When asked why he had detained Fuller,
Officer Robinson testified that he “believed [Fuller] was involved in the
assault that Officer Fritchman called out.” Id. at 23.
On cross-examination, Officer Robinson clarified that he approached
the vehicle after securing Fuller, on the ground in handcuffs. Id. at 49.
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Officer Robinson then opened the back passenger door, while the driver and
front-seat passenger remained in the vehicle, with their hands in view. Id.
at 55. Officer Robinson testified that he stopped Fuller because Fuller
matched the description of the assailant, and was in the back seat of a
parked vehicle, in the area to which the assailant had just run. Id. at 58.
Thus, the trial court’s findings are supported by the evidence of record,
and we discern no error of law in the conclusions reached by the trial court.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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Circulated 12/05/2017 03:29 PM
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IN THE COURT OF COMMON PLEAS OF MONTGOMERYvC.O;U�TY/ ' ' i _:,,,., ..
PENNSYLVANIA
CRIMINAL DIVISION 2011 MAY -5 PM 3: 59
"•,·,
·,,.
COMMONWEALTH OF NO. 3819-16
PENNSYLVANIA
484 EDA 2017
v.
··,. J TERRENCE FULLER
OPINION
SILOW, J. MAY _�_.., 2017
Terrence Fuller appeals from the judgment of sentence imposed after a
bench trial at which he was found guilty of possession with intent to deliver
and related offenses. For the reasons set forth below, the judgment of sentence
should be affirmed.
I. FACTUAL AND PROCEDURAL HISTORY
Officer Kevin Fritchman was driving an unmarked patrol car in
Norristown, Montgomery County, around 10:30 p.m., on April 1, 2016, when
he saw two men assaulting an elderly man.1 (N .T., 1 / 17 / 17, p. 7) The officer
made a U-turn, at which time the two men fled. Id. Officer Fritchman gave
chase in his vehicle and radioed a report of his observations, describing one of
the assailants as a short black male with a large beard. Id. at 8. He also noted
the direction in which the two men had fled. Id. at 9.
1 The factual background is derived from the testimony of the Commonwealth's
witnesses at the suppression hearing, both of whom this court found testified
credibly.
Officer Carl Robinson Jr. received the radio report while driving in his
own unmarked police vehicle. Approximately one minute later, and about a
block-and-a-half away from the assault, Officer Robinson saw three people
sitting in a parked vehicle with the headlights off. Id. at 21, 37. The vehicle
was located in the area toward which Officer Fritchman had stated the
. ,,;, assailants had run and no one else was on the street. Officer Robinson shined
the headlights of his patrol car toward the vehicle and observed a shorter black
male with a beard in the backseat. Id. at 21-22. The backseat passenger
(hereinafter "defendant") made a furtive movement, reaching down toward the
floor of the vehicle. Id. at 22. Defendant then got out of the vehicle and started
walking away. Id. Officer Robinson testified that the vehicle was parked in a
high-crime area, he knows through his training and experience that suspects
often conceal drugs and guns, he suspected at the time that defendant had
been involved in the assault and he was concerned for his safety because he
believed defendant may have stashed a weapon under the front seat. Id. at 22-
23, 35-36.
Officer Robinson ordered defendant to stop and drew his firearm for
officer safety. Officer Fritchman, who since had arrived on the scene, detained
defendant while Officer Robinson looked into the vehicle where he had seen
defendant reach down. Id. at 22. He observed two sandwich bags containing
what appeared to be cocaine and heroin. Id.
2
Defendant was placed under arrest and later charged with possession
with intent to deliver cocaine, possession of heroin, possession of cocaine and
two counts of drug paraphernalia.P He filed a pre-trial motion to suppress,
which this court denied after a hearing. Defendant then proceeded to a trial by
judge and the court found him guilty of all charges. He received a total
sentence of two to four years in prison.
Defendant did not file a post-sentence motion. He timely appealed and
filed a counseled concise statement of errors in accordance with Pennsylvania
Rule of Appellate Procedure 1925(b). The Pennsylvania Superior Court
subsequently ordered a Grazier hearing and this court determined that
defendant knowingly, intelligently and voluntarily waived his right to be
represented by counsel. This court also granted defendant's oral request to file
a supplemental concise statement.
Defendant filed a supplemental prose concise statement on April 24,
2017, that essentially restates the concise statement filed by counsel. Three
days later he filed an additional supplement to the prose concise statement.
II. ISSUES
Defendant raises the following issues in his supplemental prose concise
statements:
The trial court erred in denying [defendant's]
suppression motion under [the] unique facts and
circumstances of this case. The police did not have
reasonable suspicion to detain [defendant] in such an
2The Commonwealth also charged defendant with possession with intent to
deliver heroin, but withdrew that count at trial.
3
intrusive manner, nor did they have probable cause to
search the vehicle. The car was legally parked and the
occupants were doing nothing wrong. (N. T. 1-1 7 -1 7,
p. 57 lines 17-22). Neither was an investigative
detention warranted nor was a subsequent search of
the vehicle warranted. The only intrusion necessary
was a mere encounter or request for information. The
subsequent search of the vehicle which led to the
seizure of evidence was not justified. [Defendant]
raises the challenges under the United States and
Pennsylvania Constitution[s].
Did the Lower Court err as a matter of law by
concluding that [defendant] was subjected to an
investigative detention and not an actual arrest
without probable cause?
III. DEFENDANT IS NOT ENTITLED TO RELIEF ON HIS CHALLENGE TO
THE DENIAL OF HIS MOTION TO SUPPRESS.
Defendant's supplemental concise statements, when read in conjunction,
challenge this court's conclusion that he was subjected to a lawful
investigatory detention that ripened into probable cause to arrest. His
challenge does not warrant relief.
The Pennsylvania Superior Court's standard of review when assessing a
challenge to the denial of a motion to suppress
is limited 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. Because the Commonwealth
prevailed before the suppression court, [the Superior
Court] 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, [the Superior Court is] bound by these
findings and may reverse only if the court's legal
conclusions are erroneous.
4
(iii
:::1 Commonwealth v. Simmen, 58 A.3d 811, 814 (Pa. Super. 2012) (quoting
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012) (citations
omitted). "The suppression court has sole authority to assess the credibility of
the witnesses and is entitled to believe all, part or none of the evidence
presented." Simmen, 58 A.3d at 817.
Pennsylvania recognizes three levels of police interactions with civilians:
mere encounter; investigative detention; and arrest. An officer is permitted to
detain an individual in order to conduct an investigative detention where the
officer
reasonably suspects that the individual is engaging in
criminal conduct. This standard, less stringent than
probable cause, is commonly known as reasonable
suspicion. In order to determine whether the police
officer had reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, [courts] 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 [the] 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. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (internal
citations and quotation marks omitted). The Superior Court has found that an
extremely nervous individual's furtive movements of leaning forward and
appearing to conceal something under his seat during a nighttime stop
provides a sufficient basis for a protective sweep of the area in which the
individual was seated. Commonwealth v. Buchert, 68 A.3d 911, 916-17 (Pa.
5
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�:i Super. 2013). "Evasive behavior also is relevant in the reasonable-suspicion
mix." Foglia, 979 A.2d at 361.
i[Jii
Here, approximately a minute after receiving a report of an assault that
had been witnessed by a fellow officer, and while in a high crime area at
"\."··,..
nighttime about a block away from where the assault had occurred and in the
general location where the two assailants had run, Officer Robinson saw a man
matching the description of one of the assailants sitting in the back seat of a
parked vehicle. Immediately upon Officer Robinson shining his headlights on
the vehicle, which also contained two front seat passengers, the back seat
passenger reached down under the seat in front of him. The back seat
passenger then got out of the car and began to walk away.
The totality of these circumstances gave Officer Robinson ample
reasonable suspicion to believe the back seat passenger was engaged in
criminal activity. He, therefore, conducted a lawful detention for investigative
purposes. Officer Robinson, for the purpose of officer safety, then lawfully
checked the back seat area of the vehicle where defendant had reached down.
See Buchert, supra. The controlled substances and paraphernalia found in
that area were lawfully seized during the protective sweep. Only then was
defend ant placed under arrest.
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i:! IV. CONCLUSION
Based upon the foregoing, this court properly denied defendant's motion
to suppress. As such, his judgment of sentence should be affirmed.
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Sent on <::>J.$1 if
to the follo ing:
Clerk of Courts
District Attorney's Office, Appeals Division
Terrence Fuller, prose (GZ-7578)
SCI Graterford
PO Box 244
Graterford, PA 19426
I hereby certify that I have forwarded a copy of the within Opinion to defendant
at the above address by certified mail return receipt requested and regular
mail.
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