Com. v. Thompson, T. ( 2022 )

J-A04037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL THOMPSON :
:
Appellant : No. 1977 EDA 2020
Appeal from the Judgment of Sentence Entered October 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004708-2018
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 19, 2022
Terrell Thompson appeals from the judgment of sentence entered
following his bench trial convictions for criminal conspiracy, theft by unlawful
taking, and receiving stolen property.1 Thompson challenges the weight of the
evidence and the denial of his motion to suppress and his motion to dismiss
pursuant to Pennsylvania Rule of Criminal Procedure 600. We affirm.
Thompson and his co-defendant Stephen Purnell2 were arrested in June
2018 for stealing boxes of flooring and tiles from a residence that was
undergoing construction on North Marston Street in Philadelphia. Thompson
filed a motion to suppress, arguing his arrest was illegal, the police lacked
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1 18 Pa.C.S.A. §§ 903, 3921(a), and 3925(a), respectively.
2The Commonwealth filed appeals of the orders downgrading Thompson’s and
Purnell’s convictions to third-degree misdemeanors, docketed at No. 1929
EDA 2020 and 1909 EDA 2020. We address those appeals in separate
memoranda, filed at their respective dockets.
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probable cause to arrest him, he was subject to a stop and frisk on less than
reasonable suspicion, and the police conducted a search without a warrant or
probable cause. The court held a suppression hearing in April 2019 and denied
the motion in June 2019. The trial court summarized the facts from the
suppression hearing as follows:
On June 8, 2018, Sergeant Fran[cis] Uitz . . . was in the
22nd District in the City and County of Philadelphia at
approximately 1:50 a.m. He arrived at 1453 Mars[ton]
Street in response to flash information provided over police
radio for a burglary in progress. [Officer Uitz testified that
the call came from a verified source, which means the
source is “someone who called into 9-1-1, gave verified
information that they called it.” N.T., Apr. 29, 2019, at 18.]
The flash further described [three] to [four] males removing
items from the house and placing them in a U[-]Haul [van].
In a marked police vehicle and wearing full uniform,
Sergeant Uitz approached the address traveling the wrong
way on the 1500 block of North Mars[ton] Street. From
about 150 feet away, he saw a parked, white U[-]Haul [van]
along with [three] males outside the house and one inside
the [van]. Sergeant Uitz observed one of the males motion
to the others to get in the [van] and then drive away.
Sergeant Uitz then activated his lights and sirens and
followed the U[-]Haul.
Officer Robert H[ee]ney, also assigned to the 22nd District
and on duty at the time, received flash information over the
police radio. He observed the U[-]Haul driving away from
1453 Mars[ton] Street. Officer H[ee]ney activated his lights
and sirens. The males in the U[-]Haul drove a half a block[,]
then made a left turn to cut through an enclosed vacant lot.
The driver, Defendant Thompson, exited the U[-]Haul and
was handcuffed by Officer H[ee]ney. At the same time, [co-
][d]efendant Purnell[] exited the [van] and Officer H[ee]ney
pointed a taser at him and instructed him not to move.
Detective Timothy Gibson; a police officer assigned to the
22nd [D]istrict at the time of the incident, placed [co-
][d]efendant Purnell in handcuffs. All four males[,] including
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Defendant Thompson and [co-][d]efendant Purnell[,] were
placed in back of a patrol car.
At this point, Officer H[ee]ney opened the back door of the
U[-]Haul [van] and observed flooring and building supplies.
He also found a lease agreement on the passenger side of
the [van]. The U[-]Haul was not leased to any of [the] four
males. After approximately an hour, the owner of the
[supplies] arrived on the scene and identified the supplies
as belonging to him.
Trial Court Opinion, filed Feb. 11, 2021, at 4 (“1925(a) Op.”) (quoting N.T.,
June 14, 2019, at 2-4).3 At the hearing, Thompson argued the police arrived
at the scene based on an anonymous tip. When the police officer arrived, he
saw individuals outside a U-Haul truck, which, Thompson argues, is not illegal.
He claimed that when the police arrived, the individuals were in the process
of leaving the street and were pulled over when the police officers used their
car’s siren and lights. N.T., 4/29/19, at 73-75. He argues the police could stop
and investigate, but should not have put the men in handcuffs, as they did
not even have a complainant when they used handcuffs. Id. at 75. The trial
court denied the motion finding Thompson lacked a reasonable expectation of
privacy in the U-Haul van.
In November 2019, the court conducted a bench trial. The trial court
summarized the testimony and evidence as follows:
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3 The certified record does not contain the transcript of the June 2019 hearing,
where the court made its findings for the suppression motion. However, we
have the transcript from the April 29, 2019 hearing, where the court heard
evidence and arguments regarding the motion to suppress. The testimony
from that hearing supports these findings and the parties do not claim the
court incorrectly quoted its findings.
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At approximately 1:50 a.m. on June 8, 2018, Sergeant
Francis Uitz received a radio call directing him to 1453 North
Marston Street in Philadelphia. While traveling in the wrong
direction on the 1500 block of North Marston Street,
Sergeant Uitz observed a U-Haul van parked next to a
property on the corner of Marston Street. Several black
males were loading boxes into the back of the van. Sergeant
Uitz saw the males look in his direction and then proceed to
get into the van and drive southbound on the 1400 block of
North Marston Street. Following in his vehicle, Sergeant Uitz
activated his lights and sirens and unsuccessfully tried to
pull over the van. Approximately 150 to 200 feet later, the
van pulled into a lot, and the males began to get out.
Sergeant Uitz exited his vehicle with his gun drawn and
ordered the males to stop; they complied. During this time,
backup officers arrived on location. Sergeant Uitz
approached the passenger side and handcuffed two of the
males. Backup officers handcuffed the other two males.
Officer Uitz saw flooring and other construction materials in
the back of the van.
Sergeant Uitz conducted further investigation at 1453 North
Marston Street. He observed that the front door had been
forced open, and there was damage to the door and
doorframe. He also noticed that the back door was open,
and there was flooring by the back door entrance that was
similar to the flooring inside of the van. Detective Timothy
Gibson, then a police officer in the 22nd District, also
responded to 1453 North Marston Street. He observed the
U-Haul in the lot, and saw Officers Heeney and Grant run
toward it. Officer Heeney ran to the driver’s side and placed
one male up against the van. Detective Gibson handcuffed
co-defendant Stephen Purnell (“Purnell”).
Officer Robert Heeney responded to the radio call and
observed his sergeant’s vehicle approximately half a block
ahead of him. Officer Heeney saw the U-Haul van pull out of
its spot and make a left-hand turn traveling southbound on
Marston Street. At that time, Officer Heeney noticed that the
lights and sirens on his sergeant’s vehicle were activated.
Officer Heeney observed the U-Haul continue southbound
on Marston Street and then turn left into an abandoned lot.
Officer Heeney arrived at the lot approximately two seconds
after his sergeant. Next, he saw two males exit from the
driver’s side of the U-Haul. As they exited, Officer Heeney
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ordered them to stand against the U-Haul. Officer Heeney
handcuffed [Thompson]. After securing [Thompson] and
placing him inside the patrol vehicle, Officer Heeney noticed
flooring and tile materials in the back of the U-Haul.
After the police contacted him, Lawrence Resnick reported
to 1453 North Marston Street between 2:00 and 2:30 a.m.
on June 8, 2018. Mr. Resnick served as the general
contractor and realtor for a project at that location. Upon
arriving at the residence, Mr. Resnick observed damage to
the front and back doors. According to Mr. Resnick, he had
last visited the property at approximately 6:00 p.m. on June
7, 2018. At that time, there was no damage to either door.
Mr. Resnick testified that he purchased the hardwood floors
and tiles found in the van. He further explained that those
materials were previously locked inside of the residence.
1925(a) Op. at 2-3 (footnote omitted).
The trial court found him guilty of criminal conspiracy, theft by unlawful
taking, and receiving stolen property. It sentenced him to one year of
probation. Thompson filed a timely notice of appeal.
Thompson raises the following issues:
1. Whether the weight of the evidence is against
[Thompson’s] convictions for Criminal Conspiracy (18
Pa.C.S. § 903), Theft by Unlawful Taking (18 Pa.C.S. §
3921(a)) and Receiving Stolen Property (18 Pa.C.S. §
3925(a)).
2. Whether the Court erred in its denial of [Thompson’s]
Motion to Suppress Physical Evidence[.]
3. Whether the case against [Thompson] should have been
dismissed pursuant to Pa.Crim.Pro. Rule 600.
4. The Commonwealth raises the issue of the sufficiency of
the evidence as it relates to the gradation of the Theft
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offenses in their Appeal docketed above under 1929 EDA
2020.[4]
Thompson’s Br. at 7.
Thompson first claims the verdict was against the weight of the
evidence. Thompson did not raise a weight challenge before the trial court and
therefore waived the issue. Pa.R.Crim.P. 607 (requiring a claim the verdict is
against the weight of the evidence to be raised with the trial judge in a motion
for a new trial).
Thompson next argues the court erred in denying his motion to suppress
the evidence found in the U-Haul van. He claims the stop was based on an
anonymous telephone call and the police lacked probable cause based on this
call, as there was nothing inherently criminal about loading items into a U-
Haul van. He also claims that even if the officers had probable cause to search
the van, the search was unconstitutional because there were no exigent
circumstances. Thompson further argues that Officer Uitz conducted an
unlawful seizure when he turned on his lights and sirens while traveling the
wrong way on the street.
We review a trial court’s denial of a suppression motion 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.”
Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa.Super. 2017) (quoting
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4This issue is a response to the appeal filed by the Commonwealth, docketed
at 1929 EDA 2020, and we will address it in the memorandum filed at that
docket.
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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)). “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.” Id. (quoting Jones, 988 A.2d at 654). Our scope of review
includes only the suppression hearing record.5 Id.
Thompson challenges both his seizure and the search of the van.
Because the trial court addressed the search of the van, we will address that
issue first.
“The expectation of privacy is an inquiry into the validity of the search
or seizure itself; if the defendant has no protected privacy interest, neither
the Fourth Amendment nor Article I, § 8 is implicated.” Commonwealth v.
Enimpah, 106 A.3d 695, 699 (Pa. 2014). If the Commonwealth shows the
defendant lacked a privacy interest in the area search, the burden shifts to
the defendant to establish that he had a reasonable expectation of privacy.
Id. at 701. “An expectation of privacy is present when the individual, by his
conduct, exhibits an actual (subjective) expectation of privacy and that the
subjective expectation is one that society is prepared to recognize as
reasonable.” Commonwealth v. Jones, 874 A.2d 108, 118 (Pa.Super. 2005)
(citation omitted).
In Jones, we found the defendant did not have a reasonable expectation
of privacy in the vehicle searched where the defendant did not attempt to
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5 To the extent the testimony from the suppression hearing and the trial
differed, we rely on the suppression hearing testimony for this issue.
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explain his connection to the vehicle. We also pointed out that the operator of
the vehicle was not the named lessee and was not an authorized driver, the
named lessee was not present in the vehicle, the defendant offered no
connection to the named lessee, and the return date for the rental car had
passed. 874 A.2d at 120.
Here, the court concluded that Thompson lacked a reasonable
expectation of privacy in the vehicle, reasoning that the officers found a lease
agreement in the U-Haul van and the lease did not name any of the van’s
occupants as lessee. 1925(a) Op. at 5 (citation omitted). It found that
Thompson did not present any evidence to contradict this lack of reasonable
expectation of privacy and it therefore denied the motion. Id.We agree with the trial court that Thompson did not have a reasonable
expectation of privacy in the U-Haul van, as he was not on the lease, and he
did not establish any other reason he would have an expectation of privacy.
See Jones, 874 A.2d at 120.
We must next address whether an unconstitutional seizure occurred. If
the police lacked reasonable suspicion to effectuate the stop or probable cause
to detain Thompson, the items in the U-Haul van would be suppressed
regardless whether Thompson had an expectation of privacy in the van. See
Commonwealth v. Shabezz, 166 A.3d 278, 288-89 (Pa. 2017) (where an
illegal seizure occurs, the defendant need not demonstrate a reasonable
expectation of privacy in the area searched but rather we must determine
whether the evidence obtained was the fruit of the poisonous tree). Thompson
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raised the constitutionality of his detention in his motion to suppress, at the
suppression hearing, and on appeal. Although the trial court did not address
the issue, we find we can do so because the record contains sufficient
information and the court made sufficient findings of fact for us to make the
determination.
“The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures.” Commonwealth v. Singleton, 169
A.3d 79, 82 (Pa.Super. 2017) (citing Commonwealth v. Lyles, 626 Pa. 343,
350, 97 A.3d 298, 302 (2014)). The 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. Mackey, 177 A.3d at
227 (citing Jones, 874 A.2d at 116)
“A mere encounter can be any formal or informal interaction between
an officer and a citizen, but will normally be an inquiry by the officer of a
citizen. The hallmark of this interaction is that it carries no official compulsion
to stop or respond, therefore need not be justified by any level of police
suspicion.” Id. (citations and internal quotations marks omitted). “In contrast,
an ‘investigative detention’ . . . carries an official compulsion to stop and
respond” and “requires reasonable suspicion of unlawful activity.” Id. Finally,
“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.” Id. (citation omitted). A custodial
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detention requires that the police have probable cause to believe that the
person so detained has committed or is committing a crime. Id.Here, Thompson was seized and an investigative detention occurred
when the police officers activated their lights and sirens to effectuate the stop.
See Commonwealth v. Livingstone, 174 A.3d 609, 625 (Pa. 2017).
Further, we will assume, without deciding, that when the police officers
handcuffed Thompson and detained him in the police car for an hour, a
custodial detention occurred. See Commonwealth v. Teeter, 961 A.2d 890,
899 (Pa.Super. 2008) (en banc) (“The court considers the totality of the
circumstances to determine if an encounter is investigatory or custodial, but
the following factors are specifically considered: the basis for the detention;
the duration; the location; whether the suspect was transported against his
will, how far, and why; whether restraints were used; the show, threat or use
of force; and the methods of investigation used to confirm or dispel
suspicions.”); but see Commonwealth v. Guillespie, 745 A.2d 654, 661
(Pa.Super. 2001) (use of handcuffs did not transform stop into custodial
detention where other factors militated against the finding, such as the
“minimal duration of detention, no transport against will, no show or threat or
use of force”).
We conclude the police had reasonable suspicion to support the
investigative detention of Thompson. The officers responded to a police call
from a verified source regarding a burglary in progress on North Marston
Street, where individuals were putting items in a U-Haul van. The call was
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received around 1:50 a.m., which is an unusual time to be loading a U-Haul.
When the police officer arrived, he saw a parked, U-Haul van, with three males
outside the house and one inside the van. The officer saw one of the men
motion to the others, and they then entered the van and drove away. This
provided reasonable suspicion to activate the lights and sirens. See
Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super. 2005) (finding to
have reasonable suspicion a policer officer may rely upon tips from citizens,
and noting that where a tip is an anonymous call, it should be treated with
particular suspicion, but “a tip from an informer known to the police may carry
enough indicia or reliability for the police to conduct an investigatory stop”);
In re D.M., 781 A.2d 1161, 1163 (Pa. 2001) (anonymous tip that a person
on a specific corner, described as wearing the same clothes as defendant, was
carrying a gun, coupled with the fact that the defendant fled when the officer
approached, constituted reasonable suspicion to stop the defendant).
The U-Haul proceeded to an empty parking lot where it was forced to
stop because a fence blocked its path. Some of the individuals then exited the
vehicle before stopping at the police officer’s command. The totality of the
circumstances, including the verified call reporting a burglary in progress, the
loading of a U-Haul at 1:50 a.m., the flight when the individuals saw the
officers, and the continued flight when the U-Haul stop, provided probable
cause for a custodial detention. See Commonwealth v. Brogdon, 220 A.3d
592, 599 (Pa.Super. 2019) (probable cause exists where “criminality is on
reasonable inference, not necessarily even the most reasonable inference” and
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“is made out the facts and circumstances which are within the knowledge of
the officer at the time of the arrest, and of which he had reasonably
trustworthy information, are sufficient to warrant a man of reasonable caution
in the belief that the suspect has committed or is committing a crime”).
Accordingly, the trial court did not err in denying Thompson’s motion to
suppress.
In his final issue, Thompson claims the court erred in denying his Rule
600 motion. He maintains that the Commonwealth brought him to trial after
the adjusted run date.
We review an order denying a Rule 600 motion for an abuse of
discretion. Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017). “Rule of
Criminal Procedure 600 requires that ‘[t]rial in a court case in which a written
complaint is filed against the defendant shall commence within 365 days from
the date on which the complaint is filed.’” Id. at 324 (quoting Pa.R.Crim.P.
600(A)(2)(a)). “[P]eriods of delay at any stage of the proceedings caused by
the Commonwealth when it has failed to exercise due diligence are to be
counted in the 365–day tally.” Id.; see also Pa. Rule 600 (C)(1). Further, the
Rule provides that “[a]ny other periods of delay shall be excluded from the
computation.” Id. (quoting Rule 600(C)(1)) (emphasis removed). “[T]ime
attributable to the normal progression of a case simply is not ‘delay’ for
purposes of Rule 600.” Id. at 325. “[P]eriods of judicial delay are excludible
from calculations under the rule.” Id. “Failure to meet the rule’s prompt-trial
requirement constitutes grounds for dismissal.” Id.- 12 -
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When addressing an appeal from an order dismissing a Rule 600 motion
we must first determine the mechanical and adjusted run dates:
The mechanical run date is the date by which the trial must
commence under [Rule 600]. It is calculated by adding 365
days (the time for commencing trial under [Rule 600] ) to
the date on which the criminal complaint is filed. As
discussed herein, the mechanical run date can be modified
or extended by adding to the date any periods of time in
which delay is caused by the defendant. Once the
mechanical run date is modified accordingly, it then
becomes an adjusted run date.
Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.Super. 2007) (en
banc) (citation omitted).
The Commonwealth filed its Complaint against Thompson on June 8,
2018. The mechanical run date was June 8, 2019. Thompson concedes 130
days of excludable time. Thompson’s Br. at 13; Motion to Dismiss, filed Oct.
22, 2019, at ¶¶ 6, 11 (conceding 84 days and 46 days excludable time). That
brings the adjusted run date to October 16, 2019.6 Trial occurred on November
1, 2019. We must therefore determine whether any of the disputed time
frames are excludable.
The case was set for trial on September 27, 2019. Thompson and the
Commonwealth were prepared for trial, but the co-defendant’s counsel was
unavailable and requested a continuance, which the court granted. The
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6 Thompson maintains that the mechanical run date was June 8, 2019, and
with the 130 days of excludable time, the adjusted run date was October 10,
2019. See Thompson’s Br. at 13. However, with 130 days of excludable time,
the adjusted run date is October 16, 2019.
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Commonwealth declined to sever the cases. In his Rule 600 motion, Thompson
argued the time following the grant of Purnell’s continuance request was not
excludable time, reasoning that the Commonwealth should have severed
Thompson’s case from Purnell’s case. The Commonwealth argues it was not
required to sever the cases. This continuance was for 21 days, from
September 27 to October 18, 2019. If this time was excludable, the adjusted
run date would be November 6, 2019, and the court would not have abused
its discretion in denying the motion to dismiss.
The trial court found this 21-day period was excludable, as Purnell’s
counsel was unavailable. It cited Commonwealth v. Robbins, 900 A.2d 416,
417 (Pa.Super. 2006), where we concluded that the Commonwealth is not
required to sever cases where it faces a possible Rule 600 violation and that
the court erred when it factored the refusal to sever into its Rule 600 violation.
We conclude the trial court did not abuse its discretion in finding the
time following Thompson’s co-defendant’s continuance request was
excludable, as the Commonwealth was not required to sever the cases for
Rule 600 purposes. See Robbins, 900 A.2d at 417; Commonwealth v.
Kearse, 890 A.2d 388, 394-95 (Pa.Super. 2005) (finding the Commonwealth
acted with due diligence, where it would not sever the defendant’s case,
because the Commonwealth was present and ready to proceed on the five
preliminary hearing dates which required a continuance due to co-defendant’s
counsel). Accordingly, it did not abuse its discretion in denying the Rule 600
motion.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2022
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