Com. v. Miller, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
CHRISTOPHER EDWARD MILLER :
:
Appellant : No. 393 MDA 2019
Appeal from the Judgment of Sentence Entered, February 7, 2019,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0005214-2017.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 14, 2020
Christopher Edward Miller appeals from the judgment of sentence
imposed following his conviction of possession with intent to distribute
(“PWID”) and possession of a controlled substance.1 We affirm.
This case arises from an incident which occurred in the early morning
hours of September 17, 2017, in Lancaster, Pennsylvania. Miller and his
cousin were attending a party at a bar when a fight broke out. When police
arrived, several more fights broke out outside the bar. One such fight,
involving Miller’s cousin, occurred in the parking lot of a nearby convenience
store. Police arrested several individuals, including Miller’s cousin, and
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* Retired Senior Judge assigned to the Superior Court.
1 See 35 P.S. §§ 780-113(a)(16), (30).
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ordered the crowd to disperse from the convenience store parking lot. Police
repeatedly directed Miller, who was visibly intoxicated, to leave the area;
however, he refused to follow that directive, and repeatedly attempted to re-
enter the convenience store parking lot that police were trying to secure.
Police then arrested Miller for disorderly conduct. When police searched Miller
incident to his arrest, they seized two bundles of heroin containing fentanyl
and two rocks of cocaine from his front pants pockets, and four bundles of
heroin containing fentanyl from his rectum. Police then charged Miller with
PWID (heroin containing fentanyl), possession of a controlled substance
(cocaine), and disorderly conduct.2
Miller moved to suppress the heroin and cocaine on the basis that police
lacked probable cause to arrest him. On October 1, 2018, the trial court
conducted a suppression hearing at which the Commonwealth presented the
testimony of three members of the Lancaster City Bureau of Police; namely,
Detective Sergeant Nathan Nickel, Officer Thomas Ginder, and Officer J.
Hatfield. The Commonwealth also introduced video footage from the scene,
which showed Miller’s encounters with the officers. Miller testified on his own
behalf, and argued, inter alia, that he was (1) attempting to inform the officers
that his cousin was not at fault; (2) trying to locate family members; (3)
returning to the convenience store to obtain cigarettes; and (4) was never
____________________________________________
2The disorderly conduct count was charged as a misdemeanor offense under
18 Pa.C.S.A. § 5503(a)(4).
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directed by police to leave the area. After considering the testimony,
evidence, and arguments submitted by the parties, the trial court determined
that police had probable cause to arrest Miller for disorderly conduct as a
misdemeanor offense. Accordingly, on October 31, 2018, it denied
suppression. In so doing, the trial court placed its findings of fact on the
record, as follows:
1. At approximately 1:40 a.m. on the morning of September 17,
2017, . . . [p]olice were dispatched for a physical altercation
occurring at Catalina’s on Orange, which is bar/restaurant
establishment located at 40 West Orange Street in the City of
Lancaster.
2. Said establishment is located approximately one-half of a city
block from the intersection of West Orange and North Prince
Streets.
3. There is an A Plus gas station and convenience store located
on the northwest corner of this intersection.
4. Upon arrival, the responding officers observed a large group of
individuals milling about the area in question.
5. Witnesses at the evidentiary hearing have estimated the size
of the crowd to have been approximately 30 to 70 people.
6. Shortly following the officers’ arrival, a physical fight began
between two males in the parking lot of the A Plus
convenience store, near the gasoline pumps[.]
7. Detective Sergeant Nathan Nickel and Officer Eric McCrady
. . . interceded in an attempt to stop this physical assault.
8. Detective Sergeant Nickel arrested one of the males involved
in the fight, handcuffed him, and placed him on the curb in
front of the store.
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9. Based upon [Miller’s] testimony, it appears that this individual
is [his] cousin, whom had been in [Miller’s] company shortly
before this physical altercation.
10. It was during this period of time that Lt. Christopher Laser
. . . directed officers to secure the parking lot of the A Plus
convenience store and to prevent additional individuals from
entering the parking lot.
11. Said actions were taken in an effort to deescalate the
growingly hostile situation, to maintain the safety of the
responding officers, and to preserve the public peace.
12. In response to Lt. Laser’s directive, Officer Thomas Ginder
and numerous other officers . . . attempted to secure the
parking lot area of the A Plus convenience store.
13. During this time, the officers had repeatedly made verbal
commands to individuals that they were not permitted entry
in to the parking lot of the A Plus convenience store and
repeatedly instructed members of the large crowd to dissipate
and leave the area.
14. It is noted that Officer Ginder initially maintained his post
securing the parking lot until a separate, third, physical
altercation was reported on Prince Street, again within one-
half a city block from the A Plus convenience store parking
lot.
15. Officer Ginder responded to that altercation.
16. Once that altercation was quelled, Officer Ginder returned to
his post to continue to secure the parking lot in question.
17. Officer J. Hatfield, who was accompanied by a police canine,
also responded to the scene and parked his police vehicle in
the parking lot of the A Plus convenience store.
18. Initially, Officer Hatfield attempted to dissipate the crowd
directly outside of Catalina’s on Orange.
19. While Sgt. Reich . . . gave the crowd verbal commands to
leave the area, Officer Hatfield and his canine walked west on
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West Orange Street, a major thoroughfare, in an effort to
disperse the crowd from the vicinity of Catalina’s on Orange.
20. Officer Hatfield then provided assistance in attempting to
secure the parking lot of the A Plus convenience store.
21. At this time, Officer Hatfield was approached by [Miller], who
attempted to enter the parking lot.
22. Officer Hatfield instructed [Miller] not to enter the parking lot
and to leave the area.
23. [Miller] did not heed such commands; rather, [Miller]
continued in an effort to get to one of the individuals whom
had been involved in the fight near the gasoline pumps.
24. At this point, Officer Hatfield made eye contact with [Miller]
and, again, directly instructed [him] to leave the area.
25. In response to such commands, [Miller] continued coming
toward the fight.
26. At this point, [Miller] was located very closely to Officer
Hatfield and his police canine.
27. [Miller] was in such close physical proximity to the officer so
as to require Officer Hatfield to physically push [Miller] back,
in an effort to protect [Miller] from the police canine, whom
is trained to respond to persons in such close physical
proximity to a handling officer even without command.
28. In response to said action, although having been told on two
occasions to leave the property, [Miller] chose to linger near
the side of the parking lot.
29. After approximately two minutes, [Miller] again attempted to
reenter the parking lot.
30. In response thereto, Officer Hatfield, again, command[ed]
[Miller] to leave the area and physically pushe[d] [Miller]
backwards.
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31. In response thereto, [Miller] smirked or laughed and indicated
a desire to speak with his friend, whom had been placed into
custody by Det. Sgt. Nickel.
32. Accordingly, at this time, Officer Hatfield physically attempted
to escort [Miller] from the area.
33. Thereafter, [Miller] was observed attempting to sneak
through the shrubbery area adjacent to the parking lot in a
presumed effort to get to [cousin], [who] was in custody.
34. Officer Hatfield was also directed to respond to the separate
physical altercation that had occurred on North Prince Street.
35. As officers struggled to restrain the participants in this
separate fight, other [officers] gave repeated, loud verbal
commands for people to leave the block.
36. Again, said efforts were made to secure the scene, prevent
further violence, secure the safety of the officers, and
maintain the public peace.
37. Even though officers were making such commands, Officer
Hatfield again encountered [Miller], who was walking into the
area of the second physical altercation on North Prince Street,
rather than heeding the given commands to leave such area.
38. At this time, Officer Hatfield again made eye contact with
[Miller] and told him to leave the area.
39. Said interaction occurred within three feet of the officers,
whom were in the process of restraining the combatants from
that physical altercation.
40. After that dispute was resolved, Officer Hatfield returned to
continue securing the parking lot of the A Plus convenience
store.
41. Officer Hatfield was, again, approached by [Miller], whom was
attempting to enter the parking lot of the convenience store.
42. At this time, [Miller] was pointing directly at Det. Sgt. Nickel
and his [cousin], [who] were near the store entrance.
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43. [Miller] was, once again, in very close physical proximity to
Officer Hatfield.
44. Accordingly, in light of the totality of [Miller’s] actions, Officer
Hatfield instructed other officers to arrest [him] and place him
in custody for the misdemeanor offense of Disorderly
Conduct.
45. [Miller] was then placed into custody by Officers Deibler and
Burgett . . ..
46. During his arrest, [Miller] became verbally aggressive and
physically resistant.
Trial Court Opinion, 6/3/19, at 7 -10 (citations to the record omitted).
The matter proceeded to trial. At the conclusion of trial, a jury found
Miller guilty of PWID (heroin containing fentanyl), and possession of a
controlled substance (cocaine), and not guilty of disorderly conduct. On
February 7, 2019, the trial court sentenced Miller to an aggregate prison term
of three and one-half to twelve years in prison.3 Miller filed a timely notice of
appeal. Both Miller and the trial court complied with Pa.R.A.P. 1925.
Miller raises the following issue for our review: “Did the [trial] court
commit reversible error by refusing to suppress the items seized from
[Miller’s] person subsequent to his arrest, as the record reflects the police did
not have probable cause to arrest?” Miller’s Brief at 2.
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3 We note that the trial court incorrectly states in its opinion that Miller was
convicted solely of PWID, and sentenced to two and one-half to nine years in
prison. See Trial Court Opinion, 6/3/19, at 2. However, the Sentencing Order
indicates Miller was also convicted of possession of cocaine and sentenced to
one to three years on that conviction, to run consecutively to the PWID
sentence. Sentencing Order, 2/7/19, at 1.
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On appeal from the denial of a suppression motion,
Our standard of review . . . is whether the record supports the
trial court’s factual findings and whether the legal conclusions
drawn therefrom are free from error. Our scope of review is
limited; we may consider only the evidence of the prosecution 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 record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the court
erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en
banc) (citation omitted). Additionally, “appellate courts are limited to
reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pretrial motion to suppress.” Commonwealth v.
Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017) (citation omitted). “It is
within the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony.” Id. at
1282 (citation omitted).
In evaluating Miller’s argument that he was subjected to an unlawful
warrantless arrest, we are mindful that, to be constitutionally valid, a
warrantless arrest must be supported by probable cause. See
Commonwealth v. Agnew, 600 A.2d 1265, 1271 (Pa. Super. 1991).
Probable cause to arrest exists when the facts and circumstances
within the police officer’s knowledge and of which the officer has
reasonably trustworthy information are sufficient in themselves to
warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.
Probable cause justifying a warrantless arrest is determined by
the totality of the circumstances.
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Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa. Super. 2013) (citations
omitted). Further, the question we ask is not whether the officer’s belief was
correct or more likely true than false; rather, we require only a probability,
and not a prima facie showing, of criminal activity. See Commonwealth v.
Williams, R., 2 A.3d 611, 616 (Pa. Super. 2010) (en banc).
The particular crime of disorderly conduct at issue in this matter is
defined as follows: “[a] person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he . . . creates a hazardous or physically offensive condition by any
act which serves no legitimate purpose of the actor.” 18 Pa.C.S.A.
§ 5503(a)(4). With respect to grading, “[a]n offense under this section is a
misdemeanor of the third degree if the intent of the actor is to cause
substantial harm or serious inconvenience, or if he persists in disorderly
conduct after reasonable warning or request to desist. Otherwise disorderly
conduct is a summary offense.” Id. at § 5503(b).
Miller contends that the trial court erred in denying suppression because
there was no evidence presented at the suppression hearing that he created
a hazardous or physically offensive condition. Miller argues:
In the instant matter, the record reflects that [Miller’s]
conduct did not create a hazardous or physically offensive
condition. [Miller] largely complied with officers’ orders to
disperse. [Miller] appeared surprised and confused on the video
following his first verbal and physical encounter with Officer
Hatfield. Officer Hatfield did not shove [Miller] away from the
scene but toward and [sic] officer with a suspect in custody, who
[Miller] approaches without issue. [Miller] then again tried to get
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to his cousin, not by concealing himself, but he walked directly
toward Officer Hatfield. After this second physical confrontation,
[Miller] stood outside of the secured area of the gas station
parking lot. . . .
At the second location, [Miller] complied with officers’ orders
and can be seen on the video escorting his friends and family
away. See N.T. 10/1/18 at 74-75; W. Orange and N. Prince
Streets video at 1:52:27. When [Miller] again approached the gas
station, he immediately complied with officers’ orders. He did not
gesture at the officers, but behind them. Behind the officers,
bystanders were entering the convenience store and walking by
where officers were placing [Miller’s] cousin in handcuffs
Aside from the officers’ testimony that the general
conditions of fights with groups of bystanders tend to cause more
fights, there was nothing about [Miller’s] conduct which support a
finding that his specific conduct created a hazardous condition. At
no point was [Miller] aggressive or belligerent toward officers,
even in the face of physical confrontation. [Miller] was not alleged
to have been trying to engage other bystanders in unrest. [Miller]
had legitimate reasons to remain near the gas station. [Miller]
was a witness to the fight that broke out in front of the gas station
and could provide relevant information with regard to that fight.
If [Miller] had failed to speak to police at the scene, any pertinent
and exculpatory information he could provide in relation to the
fight with his cousin would be discredited. [Miller] was merely a
bystander with a legitimate reason to be present, who was
perceived as a threat to law enforcement purely because of his
comparatively large size and not because of his conduct.
Miller’s Brief at 11-12.
The trial court explained the basis for its denial of suppression as
follows:
The court noted [Miller’s] testimony that he was simply attempting
to reach Detective Sgt. Nickel so as inform the detective that his
cousin did not instigate the physical altercation by the gasoline
pumps. Even were the court to find such testimony to be credible
in nature, it, in no way, justifies [Miller’s] repeated refusal of the
officers’ directives. Further, it is noted that the court finds much
of [Miller’s] testimony to lack credibility, including but not limited
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to: averments that he was simply attempting to locate family
members, averments that he returned to the convenience store
to obtain cigarettes, and, most notably, averments that the
officers had never directed him to leave the area and indicating
that he willing would have done so if he had been requested by
the law enforcement officers. It is specifically noted that [Miller]
is [a] rather large individual, approximately 6’1” in height and 300
pounds in weight and demonstrated visible signs of intoxication
during the early morning hours in question. The court noted that,
during this relatively short episode, [Miller] attempted numerous
times to encroach upon the law enforcement officers, whom were
in the process of apprehending the individuals engaged in physical
altercations, attempting to secure the parking lot of the A Plus
convenience store, and attempting to restore the public order.
Specifically, [Miller] encroached upon, and tried to move past,
officers on at least five distinct instances within four minutes from
1:51 am to 1:55 am. Each time, [Miller] was specifically
instructed to leave the area. On at least two occasions, [Miller]
was in such close physical proximity to Officer J. Hatfield that
Officer Hatfield had to push [Miller] backwards for [Miller’s] own
protection. This court found that [Miller] repeatedly ignored all
such directives. Not only did [Miller] ignore the officers’
commands, he also attempted on at least one occasion to
surreptitiously enter that secured parking lot. Although [Miller]
was neither yelling nor acting in a physically assaultive manner,
the officers deemed [Miller’s] actions to constitute a threat to the
safety of the involved officers and a threat to the safety of other
members of the public. It is clear that [Miller’s] actions served no
lawful purpose and distracted the officers from their lawful
attempts to dissipate a hostile and chaotic environment.
Trial Court Opinion, 6/3/19, at 11-12.
Based on our review of the record, we conclude that the trial court’s
probable cause finding is amply supported by the totality of the evidence in
the suppression record. The trial court, sitting as finder of fact, was free to
disbelieve Miller’s explanation for his conduct. See Bush, 166 A.3d at 1282.
Moreover, probable cause must be viewed not from the perspective of the
offender, but from the vantage point of a prudent, reasonable, cautious police
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officer on the scene at the time of the arrest guided by his experience and
training. See Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa. 1999).
The suppression record reflects that police officers were in the process
of deescalating a chaotic and hostile environment, and restoring public order
by apprehending the individuals engaged in multiple fights, and dispersing a
crowd of thirty to seventy individuals. Miller, who was visibly intoxicated,
continuously ignored police directives to leave the convenience store parking
lot that police were attempting to secure, and instead kept trying to reenter
that specific area. The officers did not need to establish that Miller
intentionally created a hazardous condition. Rather, they merely needed to
believe that his intoxication and refusal to comply with multiple police
directives to leave the area established a probability that his continued
presence created a hazardous condition to himself, the officers, and the public.
See Commonwealth v. Williams, R., 2 A.3d at 616 (holding that for
probable cause we require only a probability, and not a prima facie showing,
of criminal activity).
Because the officers had probable cause to arrest Miller for disorderly
conduct, the search incident to the arrest was lawful. Thus, the court properly
denied Miller’s motion to suppress the fruits of that search.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/14/2020
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