Com. v. Barnes, T. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 939 WDA 2019
:
TREY BARNES :
Appeal from the Order Entered June 4, 2019,
69in the Court of Common Pleas of Beaver County
Criminal Division at No. CP-04-CR-0002459-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 6, 2020
The Commonwealth appeals from the June 4, 2019 order entered in the
Court of Common Pleas of Beaver County that granted the omnibus pretrial
motion filed by appellee, Trey Barnes, that consisted of a petition for writ of
habeas corpus and a motion to suppress physical evidence. We affirm.
The suppression court set forth the following findings of fact:
1. On November 26, 2018, Beaver Falls Police
Department was dispatched to the area of
1504 Sixth Avenue for an incident involving two
black males dressed in all black grabbing a
light-skinned female and dragging her into a
residence.
2. Officer Higby, Officer Moreno, and
Captain Kryder of the Beaver Falls Police
Department all responded to the call.
3. Upon arrival to the scene officers observed a car
with its lights on directly in front of the
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residence. This vehicle was attempting to back
out of the parking spot.
4. The officers’ [sic] pulled their patrol car right up
next to the car to prohibit it from fleeing the
area.
5. Officer Higby approached the front passenger’s
side of the vehicle and observed two black
males in the back wearing all black and a
light-skinned female between them. The two
males were reaching towards their sides during
the encounter.
6. The Officers advised the males multiple times to
keep their hands visible; however, they did not
comply and were asked to exit the vehicle for
officer safety.
7. [Appellee] was patted down by Officer Higby
after he exited the vehicle to check for any
weapons.
8. Officer Higby overheard Officer Moreno advise
the other individual that he saw a baggy sticking
out of his pocket.
9. Officer Moreno recovered the bagg[y] from the
other involved individual which contained a
large amount of heroin and placed the other
individual in the back seat of the patrol car.
10. Contemporaneously to Officer Moreno detaining
the other individual, Officer Higby attempted to
ascertain the identity of [appellee] by asking
[appellee] his name.
11. Initially, [appellee] identified himself as
“James Barnes” from New Castle.
12. Officer Higby told [appellee] “if you’re who you
say you are, we’ll get this all worked out, but
before I start running your information, don’t,
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you know, drag me along if you’re giving me
your correct information.”
13. County Dispatch advised Officer Higby that they
could not locate a record for a “James Barnes”
out of New Castle with the date of birth
provided.
14. Officer Higby continued to question [appellee]
regarding his identity and [appellee] advised
Officer Higby that he was from Indiana and did
not have a middle name, which turned out to be
incorrect information.
15. Officer Higby detained [appellee] for providing
false information and patted him down for a
second time and checked his pockets before
placing him into the patrol car. When
Officer Higby checked [appellee’s] pockets, he
recovered [appellee’s] wallet, which identified
[appellee] as Trey James Barnes out of Pontiac,
Michigan.
16. Officer Higby then placed [appellee] under
arrest for false ID to law enforcement and
conducted a further search of [appellee’s]
person, which resulted in the recovery of a large
baggy containing multiple individual baggies of
suspected crack cocaine and approximately
$1,200.00 in U.S. Currency.
17. After [appellee] was handcuffed and arrest[ed]
for False Identification, he attempted to run.
18. Officer Higby retrieved a backpack from the
vehicle and searched it outside the vehicle
before placing it into the patrol car. The
backpack contained a scale, box of Ziploc
baggies, and two and a half (2½) to three (3)
boxes of sleeping pills. [Appellee] and the other
male passenger were both charged as a result
of the search of the backpack.
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19. [Appellee] was searched a third time at the
police station and officers recovered a bag with
“lottery folds” containing suspected heroin.
Suppression court opinion, 8/12/19 at 5-10 (record citations omitted; ellipses
in original).
The record reflects that appellee was charged with manufacture or
possession with intent to manufacture (heroin and crack cocaine), possession
of a controlled substance (heroin and crack cocaine), possession of drug
paraphernalia, resisting arrest, kidnapping, robbery, unlawful restraint, and
false identification.1 Following a preliminary hearing, the resisting arrest,
kidnapping, and unlawful restraint charges were dismissed. Thereafter,
appellee filed an omnibus pretrial motion, followed by an amendment thereto.
The amended omnibus pretrial motion included a petition for writ of
habeas corpus for the false identification2 charge and a motion to suppress
physical evidence. The suppression court held a hearing on the motion on
June 4, 2019. Officer Higby was the only witness to testify. The
Commonwealth and appellee agreed to incorporate the transcript of appellee’s
preliminary hearing into the suppression hearing record. (Notes of testimony,
6/4/19 at 5, 45-46.) At the conclusion of the hearing, the suppression court
135 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32); 18 Pa.C.S.A. §§ 5104,
2901(a)(3), 3701(a)(5), 2902(1), and 4914(a), respectively.
2 We note that the amended omnibus pretrial motion also included a petition
for writ of habeas corpus for resisting arrest. The Commonwealth, however,
has conceded that “the resistance in this case does not rise to the level
required by the resisting arrest statute.” (Commonwealth’s brief at 4 n.1.)
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granted appellee’s omnibus pretrial motion because the search was incident
to an unlawful arrest for false identification. (Notes of testimony, 6/4/19
at 61.)
Following entry of the order granting appellee’s omnibus pretrial motion,
the Commonwealth filed a timely notice of appeal. Within its notice of appeal,
the Commonwealth certified that the suppression court’s order would
terminate or substantially handicap appellee’s prosecution. See
Pa.R.A.P. 311(d) (permitting Commonwealth appeal from an interlocutory
order if it certifies that the order will terminate or substantially handicap the
prosecution). Thereafter, the suppression court ordered the Commonwealth
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The Commonwealth timely complied. The suppression
court then filed its Rule 1925(a) opinion.
The Commonwealth raises the following issues for our review:
1. Did the [suppression] court err in dismissing the
charge of false identification to law
enforcement, where the officer informed
[a]ppellee of the existence of an investigation
into a kidnapping and [a]ppellee’s suspected
involvement in drug activity?
2. Did the [suppression] court err in suppressing
the items seized from the motor vehicle after
responding officers saw [a]ppellee’s
co-defendant with drugs and drug paraphernalia
on his person?
3. Did the [suppression] court err in suppressing
the items seized from [a]ppellee’s person
subsequent to [a]ppellee’s arrest?
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Commonwealth’s brief at 4-5.
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review
and consider only the evidence from the defendant’s
witnesses together with the evidence of the
prosecution that, when read in the context of the
entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate
court if the record supports those findings. The
suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to
determine if the suppression court properly applied
the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016) (internal
citations and quotation marks omitted).
Here, the suppression court found that the evidence failed to
demonstrate that Officer Higby informed appellee that he was under official
investigation in violation of Commonwealth v. Kitchen, 181 A.3d 337
(Pa.Super. 2018) (en banc), which necessitated habeas relief on the false
identification charge. Additionally, because appellee’s arrest for false
identification was illegal, the suppression court determined that all evidence
obtained in the subsequent searches was “fruit of the poisonous tree” and
must be suppressed. With certain exceptions not applicable here, “[t]he ‘fruit
of the poisonous tree’ doctrine prohibits the admission of evidence at trial that
was tainted by unconstitutional actions by law enforcement officials.”
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Commonwealth v. Santiago, 209 A.3d 912, 914 (Pa. 2019). Pennsylvania’s
decisional law has long held that “evidence seized as a result of an unlawful
arrest must be excluded.” Commonwealth v. Johnson, 83 A.3d 182, 187
(Pa. 2014).
A person commits the offense of false identification “if he furnishes law
enforcement authorities with false information about his identity after being
informed by a law enforcement officer who is in uniform or who has identified
himself as a law enforcement officer that the person is the subject of an official
investigation of a violation of law.” 18 Pa.C.S.A. § 4914(a). Our supreme
court set forth the elements necessary for a conviction of false identification
to law enforcement authorities as follows: (1) if not in uniform, the law
enforcement officer must identify himself as such; (2) the officer must inform
the individual that he is the subject of an official investigation of a violation of
the law; and (3) the individual must give false information after being so
informed. In re D.S., 39 A.3d 968, 974 (Pa. 2012). In Kitchen, this court
held that the accused is not required to infer from the attendant circumstances
that he is the subject of an investigation, but that the officer must inform the
accused that he is the subject of an official investigation prior to the accused’s
giving false identification. Kitchen, 181 A.3d at 342-343. This court restated
that “‘the official investigation element of 18 Pa.C.S.[A.] § 4914(a) cannot be
satisfied solely by an investigation of the individual’s providing false
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information as to his identity.’” Id. at 343 (original brackets omitted), quoting
Commonwealth v. Barnes, 14 A.3d 128, 131 (Pa.Super. 2011).
Here, the record reflects that Officer Higby testified at the preliminary
hearing on direct examination as follows:
Q. All right. And did you detain somebody as well?
A. Yes, I was speaking to [appellee], and I asked
him what his name was, and he told me his
name was James Barnes and provided me a
date of birth and told me he was out of New
Castle.
....
Q. Did you run his information?
A. Before I even ran his information, I told him
straight up, if you’re who you say you are, we’ll
get this all worked out, but before I start
running your information, don’t, you know, drag
me along if you’re giving me your correct
information, and he continued to say that his
name was James Barnes, so I did run his
information at that time.
Q. Okay. And when you ran his information,
anything come back.
A. No, County Dispatch advised that they could
find no record.
Q. All right. What happens then?
A. I continued to question [appellee] and asked
him where he was from, and at that point he, I
believe he told me he was from Indiana.
Q. Okay. When getting this information, did you
follow up on that at all?
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A. I did. I asked him, I said, I asked him, what his
middle name was, if he had a middle name, and
he said, I don’t. It’s just James Barnes, so at
that time I detained him believing that he was
providing me false information.
Q. When you detained him, what do you mean by
that?
A. I placed him in handcuffs.
Q. All right. And was that on suspicion of giving a
false --
A. Right.
Q. -- false ID?
A. Until I could confirm his identity.
Q. And upon placing him under arrest, was he
searched?
A. Yes[.]
Notes of testimony, 12/18/18 at 11-13.
At the suppression hearing, Officer Higby stated on direct examination
that he “can’t remember if [he] officially said, ‘This is an investigation.’”
(Notes of testimony, 6/4/19 at 16.) When asked on cross-examination if he
said anything about any kind of investigation when he initially confronted
appellee, Officer Higby stated that “[c]onversation was very limited.” (Id. at
30-31.) When asked whether the officer informed appellee that he was under
investigation after appellee’s cohort had been placed under arrest,
Officer Higby stated, “I don’t know” and then added that “[a]ny reasonable
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person would, would believe that they’re under, they’re not free to leave.”
(Id. at 33-34.) The following then took place:
Q. So at that point, you had not indicated to
[appellee], however, expressly, which means in
words, “We’re investigating you as the official,
as the subject of an official investigation. Please
provide me with identification”? Did you say
anything like that?
A. Prior to that, no[.]
....
Q. At that point when [appellee] was out of the car
and away from the female, did you then tell him
that he is the subject of an official investigation
regarding kidnapping or drugs or anything like
that?
A. I don’t recall the exact words “You’re under
official investigation,” but I told him, yeah,
“Your buddy got drugs. There’s stuff in this car.
We don’t know what’s going on. We’re getting
called down here for somebody getting drug
[sic] into a house --
Q. You said that?
A. -- “Nobody’s, nobody’s going anywhere until we
find out who you are.”
Q. You said that to him, “We’re checking out
everything because your buddy got, you know,
has drugs on him and we got a call about this,
an abduction or a kidnapping,” whatever? You
said that to him?
A. Something of that nature. I can’t say exactly
the words that were said, but I know he was
made aware that you’re not free to go. We’re
conducting an investigation.
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....
Q. Did you indicate to [appellee] that if he did not
provide you with correct information that he
would be placed under arrest for false
identification?
A. I did.
Id. at 34-36, 38. Officer Higby then confirmed that he placed appellee in
handcuffs to detain him for false identification, confirmed appellee’s identity
by looking at identification contained in appellee’s wallet, arrested appellee for
false identification, and then searched appellee. (Id. at 39-41.)
The record supports the suppression court’s factual finding that
Officer Higby failed to inform appellee that he was under official investigation
prior to appellee’s giving false identification. The suppression court properly
applied Kitchen to conclude that appellee was entitled to habeas relief on
the false identification charge because the Commonwealth failed to bear its
burden of proving the second element of false identification that required
Officer Higby to inform appellee that he was under official investigation prior
to appellee’s providing false identification. The suppression court also
properly concluded that because appellee’s arrest for false identification was
unlawful, the evidence seized as a result of that unlawful arrest must be
excluded as “fruit of the poisonous tree.”
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2020
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