Commonwealth v. Roberts , 2016 Pa. Super. 22 ( 2016 )

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2016 PA Super 22COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON ROBERTS,
Appellant No. 371 MDA 2015
Appeal from the Judgment of Sentence January 27, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000597-2014
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 02, 2016
This is an appeal from the judgment of sentence entered by the
Honorable Margaret Bisignani Moyle in the Court of Common Pleas of
Lackawanna County following Appellant’s conviction on Count 1, possession
with the intent to deliver a controlled substance (“PWID”) (powder cocaine);
Count II, PWID (crack cocaine); Count III and Count IV, possession of a
controlled substance (powder and crack cocaine, respectively); and Count V,
possession of drug paraphernalia.1 Appellant contends (1) the evidence was
insufficient to sustain his convictions; (2) the verdicts were against the
weight of the evidence; (3) the lower court erred in denying Appellant’s pre-
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1
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-
113(a)(32), respectively.
*Former Justice specially assigned to the Superior Court.
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trial motion to suppress physical evidence; (4) the trial court imposed an
illegal sentence; (5) the trial court imposed an excessive sentence; and (6)
the trial court erred in imposing consecutive sentences.2 We affirm.
The relevant facts and procedural history are as follows: Following his
arrest, on May 30, 2014, Appellant filed a counseled pre-trial motion seeking
to suppress physical evidence seized by the police. The matter proceeded to
a hearing at which a sole witness, Carbondale Police Sergeant Patrick
Lawler, testified. Specifically, Sergeant Lawler testified on direct-
examination that, on March 1, 2014, he and Officer John Bradley were
conducting surveillance of a “known drug house,” which was located in a
“high drug area” in Carbondale. N.T. Suppression Hearing, 6/16/14, at 3-4.
At approximately 10:00 p.m., he observed a male, who was later identified
as Appellant, enter the residence, remain therein for ten or fifteen minutes,
and then exit the residence. Sergeant Lawler testified the following then
occurred:
[District Attorney]: What happened next?
[Sergeant Lawler]: We were in an unmarked vehicle and
pulled up next to the male and rolled down our windows and
asked him what was going on. He looked into our vehicle and
then began to run northbound on Taylor Street.
[District Attorney]: What happened after he began to run?
[Sergeant Lawler]: I exited the vehicle and began yelling to
the male. He turned to look at me and continued to run.
Id. at 3-4 (bold added).
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2
We have renumbered Appellant’s issues for the ease of discussion.
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Sergeant Lawler testified Officer Bradley followed Appellant in the
unmarked patrol vehicle, and Sergeant Lawler ran around the corner in an
effort to determine where he could intercept Appellant. Appellant ran
between two houses and out onto the street, at which time Sergeant Lawler
began chasing Appellant on foot. Appellant ran into a driveway, around a
car parked in the driveway, and then back onto the street. During the
chase, Sergeant Lawler slipped and fell on ice in the driveway.
Meanwhile, at some point, Officer Bradley stopped the police vehicle,
exited it, and identified himself as a police officer. Officer Bradley captured
Appellant when he also fell on ice.
Realizing he had dropped his radio during the chase, Sergeant Lawler
“backtracked [his] steps” and discovered two baggies of drugs. Id. at 6. In
this regard, the relevant exchange occurred at the suppression hearing:
[District Attorney]: What happened after [Appellant] was
stopped by Officer Bradley[?]
[Sergeant Lawler]: He was stopped by Officer Bradley. I had
realized that I had dropped my portable radio during the chase.
I began to backtrack my steps. As I was walking down Church
Street I went into the alleyway where I had initially fallen, and I
noticed a cell phone on the ground and a few feet away from it a
large bag containing a powdery substance and another bag right
next to it containing a white chunky substance.
[District Attorney]: Was that located near where [Appellant]
ran around the vehicle?
[Sergeant Lawler]: Yes, exactly where he ran around.
Id. at 5-6 (bold added).
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The sergeant testified he noticed that the screen saver on the cell
phone appeared to be a picture of Appellant. Id. Further, after Appellant
was arrested, a search of his person revealed another cell phone. Id. at 7.
On cross-examination, the following relevant exchange occurred as to
what happened after Appellant exited the residence:
[Defense Counsel]: So at that point you and the other
officer rolled up on the street and asked him what is going on.
Is that right?
[Sergeant Lawler]: Yes.
[Defense Counsel]: Now unfortunately on direct you
stated that he looks into the car and then you ran inside [sic],
right?
[Sergeant Lawler]: Yes.
[Defense Counsel]: Isn’t it true that he actually looked
into the car and actually continued walking?
[Sergeant Lawler]: I don’t believe that. I believe he
ran.
[Defense Counsel]: In your affidavit of probable cause
you actually said that you [sic] looked at the officers and then he
continues walking and at that point you gather—
[Sergeant Lawler]: Well it’s in the affidavit. That was
done on a more timely fashion. It wouldn’t just happen so if it’s
in the affidavit I would go with that, yes.
[Defense Counsel]: So really what happened is you
guys were driving and you rolled up to say what’s going on and
he looked at you, right?
[Sergeant Lawler]: Yes.
[Defense Counsel]: And he continued walking?
[Sergeant Lawler]: Yes.
[Defense Counsel]: And then as he continues walking
you get out of the car and you yelled at him to stop?
[Sergeant Lawler]: Yes.
[Defense Counsel]: Okay.
Id. at 9-10 (bold added).
On redirect-examination, Sergeant Lawler clarified as follows:
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[District Attorney]: Just to clarify, when you get out of
the vehicle to have a conversation with [Appellant] what do you
actually say to him? Do you yell to him to stop or is there
something else that you say to him?
[Sergeant Lawler]: I didn’t really give an order to stop.
I got out of the vehicle and said, hey, sir, what’s going on, what
are you doing[?]
Id. at 15 (bold added).
At the conclusion of the hearing, the trial court denied Appellant’s
motion to suppress the controlled substances and cell phones. On
November 17, 2014, Appellant proceeded to a jury trial, at which Officer
Bradley, Sergeant Lawler, and Detective John Munley testified.
Specifically, Officer Bradley confirmed that on March 1, 2014, at 10:00
p.m., he was on duty with Sergeant Lawler, and they were in an unmarked
patrol vehicle conducting surveillance on a house for which they had
received numerous complaints of drug activity. N.T. Trial, 11/17/14, at 47-
48. Officer Bradley testified they observed a male, who was later identified
as Appellant, enter the residence, remain there for approximately fifteen
minutes, and then exit the residence. Id. at 50. Officer Bradley indicated
they had conducted surveillance on the residence in the past and had
observed a consistent pattern of people coming and going from the
residence. Id. at 50-51.
Officer Bradley testified that, in this specific case, after Appellant
exited the residence and walked a few blocks away, the officers pulled
alongside him, rolled down the unmarked vehicle’s window, and Officer
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Bradley said, “[H]ey bud, can I talk to you[?]” Id. at 52. In response,
Appellant, who was talking on a cell phone, looked at Officer Bradley, and
apparently noticing the Carbondale Police patch on the sleeve of his jacket,
turned and started “walking a little more quickly away [from the police.]”
Id. at 53. At this point, Sergeant Lawler exited the vehicle and said, “[H]ey
bud, what’s going on[?]” Id. In response, Appellant put the phone in his
pocket and “took off running[.]” Id.
Officer Bradley indicated that while Sergeant Lawler chased Appellant
on foot he remained in the vehicle and followed Appellant who was “running
pretty quick.” Id. at 54. At some point, Officer Bradley stopped the police
vehicle, exited it, and yelled, “[P]olice, stop[.]” Id. Appellant did not stop;
but rather, he ran between two houses, and Officer Bradley followed him.
Officer Bradley saw Appellant “hop over [a] fence,” and when Appellant re-
entered the sidewalk, he began to slip on ice. Id. at 78. After he fell,
Officer Bradley approached him, with Sergeant Lawler closely behind.
Officer Bradley testified Appellant was “not in custody at that point[,]” but
his running through backyards “was very, very suspicious.” Id. at 56.
Officer Bradley testified that after Sergeant Lawler discovered he had
dropped his radio he immediately “backtracked” to find it. A few moments
later, Sergeant Lawler returned to Officer Bradley’s location with a cell
phone, “as well as two bags of . . . suspected cocaine and crack cocaine.”
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Id. at 57. The officers arrested Appellant and a search incident to the arrest
revealed another cell phone.
Sergeant Lawler confirmed Officer Bradley’s trial testimony and
testified consistently with the testimony he offered previously at the
suppression hearing. He emphasized that, in the driveway where he
observed Appellant run around a parked vehicle, he found a cell phone,
which had a picture of Appellant as the screen saver, lying by the vehicle’s
tire, and within four feet, he found two large plastic baggies containing a
white substance, which subsequently tested positive for cocaine. Id. at 86-
87, 90.
On cross-examination, defense counsel questioned Sergeant Lawler
regarding the location of the drugs and, in particularly, the relevant
exchange occurred:
[Defense Counsel]: And you . . . previously testified
that you see these drugs in a driveway, or is it in an alleyway?
Because there’s - - you do also travel through an alleyway, isn’t
that right? Where—
[Sergeant Lawler]: I don’t believe so.
[Defense Counsel]: --did you find the drugs. Sergeant
Lawler?
[Sergeant Lawler]: In a driveway.
[Defense Counsel]: In the driveway, not the alleyway
that was up in the top part of that map?
[Sergeant Lawler]: The alleyway is where we made
contact with him.
[Defense Counsel]: So you didn’t find the drugs there?
[Sergeant Lawler]: No.
Id. at 96 (bold added).
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The parties entered a stipulation on the record that one baggie seized
by the police contained 42.46 grams of cocaine, while the other baggie
contained 36.15 grams of cocaine. Id. at 106-07.
Detective John Munley, who was permitted to testify as an expert in
the field of possession with the intent to deliver and tools of the trade,
indicated that the street value of the seized cocaine was $100.00 per gram.
He noted that typical users consume 3.5 grams of cocaine per day and they
tend to have smaller amounts of narcotics in their possession. He testified
that drug dealers, as opposed to drug users, generally do not possess drug-
use paraphernalia and they tend to have two cell phones, one for personal
use and one to use for conducting transactions. Detective Munley opined
that 42 grams of powder cocaine and 36 grams of crack cocaine is a “large
amount” and is indicative of someone who “is looking to sell it.” Id. at 119.
He further opined that the lack of money found on a person in possession of
a large amount of cocaine is indicative of a drug dealer who “just re-upped
or just got his new supply.” Id. at 121. As to the specific drugs seized by
the police in this case, Detective Munley testified the drug dealer who had
just purchased the drugs would repackage them into smaller baggies and
would try to distance himself from the drugs if apprehended by the police.
At the conclusion of the trial, the jury convicted Appellant of the five
counts indicated supra, and on January 27, 2014, the trial court sentenced
Appellant to the following: Count 1, PWID (powder cocaine), 27 months to
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54 months in prison; Count II, PWID (crack cocaine), 27 months to 54
months in prison; and Count V, possession of drug paraphernalia, one year
of special probation. The trial court determined that Counts III and IV,
possession of a controlled substance, merged with the two counts of PWID.
The trial court imposed the sentences for Counts I, II, and V consecutively,
for an aggregate of 54 months to 108 months in prison to be followed by
one year of special probation. On February 3, 2015, Appellant filed timely
post-sentence motions, which the trial court denied. This timely appeal
followed, and all Pa.R.A.P. 1925 requirements have been sufficiently met.
Appellant’s first contention is the evidence was insufficient to sustain
his convictions for PWID and possession of a controlled substance.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
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Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)
(citations omitted).
To sustain a conviction for PWID, “the Commonwealth must prove
both the possession of the controlled substance and the intent to deliver the
controlled substance.” Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.
Super. 2008) (citations omitted). It is well settled that “[i]n narcotics
possession cases, the Commonwealth may meet its burden by showing
actual, constructive, or joint constructive possession of the contraband.”
Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en
banc) (quotation and quotation marks omitted). Here, the police did not
discover the controlled substances on Appellant’s person, and thus, we must
determine whether the Commonwealth sufficiently established that Appellant
had constructive possession of the controlled substances.
This Court has defined constructive possession as follows:
Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
We have defined constructive possession as “conscious
dominion.” We subsequently defined “conscious dominion” as
“the power to control the contraband and the intent to exercise
that control.” To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.”
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quotation
omitted). “The Commonwealth may sustain its burden by means of wholly
circumstantial evidence, and we must evaluate the entire trial record and
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consider all evidence received against the defendant.” Id. (citation
omitted).
In this case, the record reflects the controlled substances were found
by Sergeant Lawler, who immediately “backtracked” Appellant’s path in an
attempt to find his dropped radio. In particular, the sergeant indicated that,
in the area where he observed Appellant run around a parked vehicle, he
found a cell phone, which had a picture of Appellant as the screen saver,
lying by the vehicle’s tire, and within four feet, he found two large plastic
baggies containing a white substance, which subsequently tested positive for
cocaine. N.T. Trial, 11/17/14, at 86-87, 90.
Based on the evidence presented, we agree with the trial court’s well-
reasoned conclusion that “[t]he jury was free to accept the inference that
the drugs were dropped by [Appellant] during the pursuit.” Trial Court
Opinion, filed 5/27/15, at 9. As such, upon review of all the facts and
circumstances, the evidence presented at trial was sufficient to connect
Appellant to the specific area where Sergeant Lawler discovered the cocaine
to prove that Appellant had control and possession of it, i.e., constructive
possession.
With regard to the intent to deliver, we must examine the facts and
circumstances surrounding the possession. “[T]he intent to deliver may be
inferred from possession of a large quantity of controlled substances. It
follows that possession of a small amount of a controlled substance supports
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the conclusion that there is an absence of intent to deliver.” Lee, 956 A.2d
at 1028 (quotation omitted). If the quantity of the controlled substance is
not dispositive as to the intent, the court may look to other factors. See id.Other factors to consider when determining whether a defendant
intended to deliver a controlled substance include the manner in
which the controlled substance was packaged, the behavior of
the defendant, the presence of drug paraphernalia, and . . .
[the] sums of cash found in possession of the defendant. The
final factor to be considered is expert testimony. Expert opinion
testimony is admissible concerning whether the facts
surrounding the possession of controlled substances are
consistent with an intent to deliver rather than with an intent to
possess it for personal use.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007)
(quotation and internal quotation marks omitted).
Here, the evidence supports the jury’s finding that Appellant possessed
the cocaine with the intent to deliver. Relevantly, the record revealed that
Sergeant Lawler seized two large plastic baggies of cocaine. One contained
approximately 42 grams of powder cocaine and the other contained
approximately 36 grams of crack cocaine. Detective Munley, who testified
as a Commonwealth expert, opined this was a large amount of drugs and
was indicative of someone who was looking to sell it. Moreover, the record
revealed Appellant was not in possession of drug-use paraphernalia, but was
in actual or constructive possession of two cell phones. Detective Munley
opined both of these factors supported a finding that the cocaine was
possessed with the intent to deliver. Finally, the record revealed that,
despite the fact Appellant had no money on his person, Detective Munley
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suggested that, in light of the large amount of drugs, it was likely Appellant
had just “re-upped” his supply, which further explained why the drugs were
not yet packaged into smaller baggies. N.T. Trial, 11/17/14, at 121. Thus,
we find the evidence was sufficient to conclude Appellant possessed the
controlled substances with the intent to deliver.3 Additionally, having found
the Commonwealth met its burden as to PWID, we necessarily conclude the
Commonwealth met its burden as to simple possession, which is a lesser-
included offense of PWID.4
Appellant’s next contention is the jury’s verdicts were against the
weight of the evidence.5 Specifically, he contends:
[T]here was conflict in [Sergeant] Lawler’s testimony about
where the drugs were located when discovered. Specifically,
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3
Without citation to relevant authority, Appellant avers the record
insufficiently supports his conviction for two separate counts of PWID and
possession. Specifically, he argues the record reveals that, at most, he
possessed cocaine meant for one delivery, and thus, he should have been
charged with a single count of PWID and a single count of possession.
However, as the Commonwealth cogently advocates, under our standard of
review, the record sufficiently establishes Appellant constructively possessed
two separate bags of cocaine, each containing a different weight and form
(one bag contained 42.46 grams of powder cocaine while the other bag
contained 36.15 grams of crack cocaine).
4
Appellant advanced no sufficiency argument as to his conviction for
possession of drug paraphernalia. In any event, the Commonwealth submits
it presented sufficient evidence that Appellant possessed plastic baggies,
which constituted drug paraphernalia in this case. See Commonwealth’s
Brief at 34.
5
Appellant presented his weight of the evidence claim in a timely post-
sentence motion.
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[Sergeant] Lawler previously testified that the bags of drugs
were located in the alleyway where he had run in an attempt to
cut off Appellant on Church Street. (N.T., Suppression Hearing,
p. 6). At trial, he testified that the drugs were located in the
alleyway, but then change[d] his response to the driveway
where he chased Appellant around the vehicle. (N.T., 11/17/14,
pp. 86[,] 96).
Appellant’s Brief at 32. Appellant suggests the inconsistency in Sergeant
Lawler’s testimony was important in light of the fact neither Officer Bradley
nor Sergeant Lawler indicated they had observed Appellant in actual
possession of the drugs.
Moreover, with regard to his conviction for PWID, Appellant suggests
his lack of possession of drug ledgers, drug scales, and large sums of money
cannot be reconciled with the Commonwealth’s expert’s testimony that such
items are generally possessed by drug dealers.
The Supreme Court has set forth the following standard of review for
weight of the evidence claims:
The essence of appellate review for a weight claim appears
to lie in ensuring that the trial court's decision has record
support. Where the record adequately supports the trial court,
the trial court has acted within the limits of its discretion.
***
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.
Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
***
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An appellate court's standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court. Appellate review of a weight
claim is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the weight
of the evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations and
quotation omitted). In order for an appellant to prevail on a challenge to the
weight of the evidence, “the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) (citation
omitted).
Here, as to Sergeant Lawler’s testimony regarding the location where
he discovered the drugs, to the extent there was inconsistency between his
suppression and trial testimony, defense counsel extensively cross-examined
Sergeant Lawler about the alleged inconsistency. As the trial court
suggested in its opinion, the jury apparently believed “Sergeant Lawler[‘s]
test[imony] ‘I noticed a cell phone in the driveway lying by the tire of the car
that we ran around, as well as two large bags of what we believed to be
cocaine.’” Trial Court Opinion, filed 5/27/15, at 4 (quotation to record
omitted). Appellant asks this Court to re-weigh the evidence and assess the
credibility of the witness presented at trial, a task that is beyond our scope
of review.
Moreover, we find unavailing Appellant’s argument that, in light of his
lack of possession of drug ledgers, drug scales, and large sums of money,
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the trial court erred in failing to find his conviction for PWID to be against
the weight of the evidence since the facts cannot be reconciled with the
Commonwealth’s expert’s testimony that such items are generally possessed
by drug dealers. The Commonwealth’s expert, Detective Munley, presented
various factors that are indicative of drug dealing, as opposed to drug using.
The jury was free to weigh the testimony, as well as accept or reject the
rationale provided by the Commonwealth for why Appellant was not in
possession of certain items. Simply put, the verdict is not so contrary to the
evidence as to shock the conscience. Thus, the trial court properly denied
Appellant’s weight of the evidence claim. Sullivan, supra.Appellant’s next contention is the lower court erred in denying his pre-
trial motion to suppress the physical evidence seized by the police. In this
regard, Appellant acknowledges that when he was first approached by the
police the interaction constituted a mere encounter. See Appellant’s Brief at
18. However, he suggests that, after Sergeant Lawler exited the police
vehicle and “yelled for [him] to stop,” he was effectively seized and
subjected to an investigative detention for which the police did not have
reasonable suspicion. Id. at 21. He further argues the seizure was
extended without reasonable suspicion when the police chased him.
Consequently, he argues the contraband that was recovered must be
suppressed as a result of the unlawful seizure.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
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whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
[W]e 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. Williams, 941 A.2d 14, 26-27 (Pa. Super. 2008) (en
banc) (citations, quotations, and quotation marks omitted). Moreover, it is
within the lower court’s province to pass on the credibility of witnesses and
determine the weight to be given to their testimony. See Commonwealth
v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013).
Under constitutional jurisprudence, there are three categories of
interactions between police and a citizen.
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention” must be
supported by a reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.
Commonwealth v. Fleet, 114 A.3d 840, 845 (Pa. Super. 2015) (quotation
omitted).
When assessing whether an interaction escalates from a mere
encounter to an investigatory detention, we employ the following standard.
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To guide the crucial inquiry as to whether or not a seizure has
been effected, the United States Supreme Court has devised an
objective test entailing a determination of whether, in view of all
surrounding circumstances, a reasonable person would have
believed that he was free to leave. In evaluating the
circumstances, the focus is directed toward whether, by means
of physical force or show of authority, the citizen-subject's
movement has in some way been restrained. In making this
determination, courts must apply the totality-of-the-
circumstances approach, with no single factor dictating the
ultimate conclusion as to whether a seizure has occurred.
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation
omitted). Moreover, when this Court evaluates whether an investigative
detention is constitutional, the following principles guide our decision.
A police officer may detain an individual in order to
conduct an investigation if that 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, we 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 our 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. Ranson, 103 A.3d 73, 77 (Pa. Super. 2014) (citing
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en
banc)).
In the case sub judice, at the suppression hearing, Sergeant Lawler
testified he and Officer Bradley were conducting surveillance on a known
drug house, which was located in a high drug area. At 10:00 p.m., after
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observing Appellant enter and exit the residence within a ten or fifteen
minute span, the officers, who were in an unmarked patrol vehicle, pulled up
alongside of Appellant and asked him, “what was going on[?]” N.T.
Suppression Hearing, 6/16/14, at 3. Appellant does not dispute that, at this
point, the interaction was a mere encounter and no reasonable suspicion to
approach was needed.
However, Appellant contends that in response to the officer’s question,
he kept walking but Sergeant Lawler then exited the police vehicle and told
Appellant to “stop.” Appellant’s Brief at 18-19, 21. Appellant suggests that,
at this moment, when the sergeant allegedly told him to “stop,” he was
subjected to an investigative detention without the requisite reasonable
suspicion.
Applying the appropriate standard of review, we conclude Appellant
has misconstrued the record in this regard. Initially, on direct-examination
at the suppression hearing, Sergeant Lawler testified that, after the officers
pulled up and asked Appellant “what was going on[,]” Appellant “looked into
[the] vehicle and then began to run northbound on Taylor Street.” N.T.
Suppression Hearing, 6/16/14, at 3. When presented with the affidavit of
probable cause on cross-examination, Sergeant Lawler confirmed that the
affidavit indicated Appellant looked into the car and continued walking, at
which point the sergeant exited the police vehicle and “yelled at him to
stop[.]” Id. at 10. However, on recross-examination, Sergeant Lawler
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clarified that he did not give an order to stop. Rather, he testified, “I got out
of the vehicle and said, hey, sir, what’s going on, what are you doing[,]”
after which Appellant ran. Id. at 15.
Thus, viewing the record under the appropriate standard of review,
and under the totality of the circumstances, we conclude Appellant’s
interaction with the police continued to be that of a mere encounter when
Sergeant Lawler exited the vehicle and asked Appellant “what’s going on,
what are you doing[?]” Id.; In the Interest of D.M., 781 A.2d 1161,
1164-65 (Pa. 2001) (indicating a mere encounter occurs when the police
approach a person in a public place and requests information).
We agree with Appellant that when he fled in response to Sergeant
Lawler’s question, and the police chased him, he was subjected to an
investigative detention. Commonwealth v. Matos, 672 A.2d 769 (Pa.
1996) (holding pursuit by police amounts to a seizure). However, we
disagree with Appellant’s suggestion that the police did not have the
requisite reasonable suspicion. Rather, in assessing the totality of the
circumstances, including the fact the chase occurred in a high crime area
immediately after Appellant exited a known drug house, combined with
Appellant’s unprovoked flight upon being approached by uniformed police
officers, the officers were justified in suspecting that criminal activity was
afoot. In the Interest of D.M., 781 A.2d at 1164 (“[I]t is evident that
unprovoked flight in a high crime area is sufficient to create a reasonable
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suspicion to justify a Terry stop[.]”). Therefore, the contraband abandoned
by Appellant during his flight from the police was properly recovered and,
thus, the trial court did not err in denying Appellant’s pre-trial motion to
suppress.
Appellant’s next contention is the trial court imposed an illegal
sentence in failing to merge his two convictions for PWID for sentencing
purposes. He claims the fact that both counts involve cocaine, and his
possession arose from the same set of facts, requires that the convictions be
merged for sentencing purposes. We disagree.
A claim that the trial court imposed an illegal sentence by
failing to merge sentences is a question of law. Accordingly, our
standard of review is plenary. The merger doctrine is essentially
a rule of statutory construction designed to determine whether
the legislature intended for the punishment of one offense to
encompass that for another offense arising from the same
criminal act or transaction.
Commonwealth v. Williams, 958 A.2d 522, 527 (Pa. Super. 2008)
(quotations and internal quotation marks omitted).
Pursuant to the Sentencing Code, merger takes place when “crimes
arise from a single criminal act and all of the statutory elements of one
offense are included in the statutory elements of the other offense. Where
crimes merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.” 42 Pa.C.S.A. § 9765. This
Court has recognized:
[I]n all criminal cases, the same facts may support
multiple convictions and separate sentences for each conviction
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except in cases where the offenses are greater and lesser
included offenses. The Supreme Court [has] further define[d]
the same facts as follows:
any act or acts which the accused has performed and
any intent which the accused has manifested,
regardless of whether these acts and intents are part
of one criminal plan, scheme, transaction or
encounter, or multiple criminal plans, schemes[,]
transactions or encounters.
Regarding the consideration of greater and lesser included
offenses, [i]f each offense requires proof of a fact which the
other does not, the offenses are not the same for double
jeopardy [and merger] purposes, event though arising from the
same conduct or episode.
Williams, 958 A.2d at 527 (quotations and internal quotation marks
omitted).
In this case, assuming, arguendo, due to the Supreme Court’s broad
definition of “the same facts,” Appellant’s two convictions for PWID could be
considered under the merger doctrine, the two convictions for PWID do not
constitute “greater and lesser included offenses” and so should be sentenced
separately. As the trial court held:
[F]or purposes of sentencing Count I and Count II[,] [they] do
not merge because powder cocaine and crack cocaine are two
separate items in the free market and are sold separately . . . .
[B]ecause the drugs were in separate bags, had different selling
prices, and had different methods of selling[,] they are two
distinct drugs held for sale. For that reason, the [c]ourt found
that Count I and Count II do not merge.
Trial Court Opinion, filed 5/27/15, at 13 (citations to record omitted).6
____________________________________________
6
Appellant argues the trial court’s factual findings in this regard are not
supported by the evidence since the Commonwealth failed to prove the
(Footnote Continued Next Page)
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We agree with the trial court that Appellant’s PWID of the powder
cocaine and crack cocaine in this case does not satisfy the Supreme Court’s
definition of greater and lesser included offenses. See, e.g., Williams, 958
A.2d at 528 (explaining what constitutes a lesser included offense for PWID).
Thus, we find no merit to Appellant’s claim.
In his final claims, Appellant challenges the discretionary aspects of his
sentence. Specifically, Appellant contends that, in imposing his individual
sentences for PWID, the trial court erred in failing to consider his drug
addiction and dysfunctional childhood, resulting in the imposition of
excessive sentences. Additionally, he contends the trial court abused its
discretion in imposing consecutive sentences for his two PWID convictions,
resulting in a harsh and unreasonably excessive sentence.
Appellant’s claims raise a challenge to the discretionary aspects of his
sentence, which must be considered a petition for permission to appeal.
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004).
To reach the merits of a discretionary sentencing issue, we
must conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, Pa.R.Crim.P. 720;
(3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
_______________________
(Footnote Continued)
baggie contained two different forms of cocaine. As indicated supra, we
reject this sufficiency based claim.
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Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citation
omitted).
Here, Appellant filed a timely notice of appeal, adequately preserved
his claims in his post-sentence motion, and included a Rule 2119(f)
statement in his brief. Additionally, assuming, arguendo, Appellant has
presented a substantial question, thus permitting our review, we find his
claims are meritless.
At the sentencing hearing, the trial court indicated it reviewed both
parties’ sentencing memorandums, as well as a presentence investigation
report, which “detail[ed] a long and troubled history.” N.T. Sentencing
Hearing, 1/27/15, at 2, 15. The trial court heard argument from defense
counsel relative to, inter alia, Appellant’s difficult childhood and use of
controlled substances. Id. at 10. Additionally, Appellant made an in court
statement seeking leniency. Id. at 12-14. The trial judge noted that,
although she “takes no pleasure in sending anyone to jail for crimes[,]” she
has a duty “to craft a sentence that is consistent with the needs and the
protection of the community and . . . the rehabilitative need of . . . the
individual.” Id. at 15-16, 20. The trial judge also recognized the sentence
must be consistent with the gravity of the offense, which in this case
consisted of Appellant being in possession of a large amount of drugs while
he was on parole for other offenses. Id. at 20-21. The trial judge then
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sentenced appellant to the “low end of the standard range” for each count of
PWID, but ran the sentences consecutively.
Inasmuch as the trial court had the benefit of a presentence report,
fully and adequately set forth the reasons for its sentence, and noted the
requirements of 42 Pa.C.S.A. § 9721(b),7 the trial court did not abuse its
discretion in sentencing Appellant. See Commonwealth v. Downing, 990
A.2d 788, 792-93 (Pa. Super. 2010) (“Sentencing is vested in the discretion
of the trial court and will not be disturbed absent a manifest abuse of that
discretion.”) (citation omitted).
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2016
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7
In fashioning a defendant’s sentence, the court must “follow the general
principle that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).
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