Com. v. Swinton, B. ( 2021 )

J-S09007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE SWINTON :
:
Appellant : No. 299 EDA 2020
Appeal from the Judgment of Sentence Entered January 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000695-2019
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 16, 2021
Appellant, Bruce Swinton, appeals from the judgment of sentence
entered on January 6, 2020. We affirm.
Appellant was arrested and charged with possession of a firearm by a
prohibited person, firearms not to be carried without a license, and carrying a
firearm on the public streets of Philadelphia.1 Prior to trial, Appellant filed a
suppression motion and (among other things) argued that all of the evidence
against him must be suppressed because, “before searching [Appellant’s] . . .
person[, the] police lacked probable cause to search” him. Appellant’s
Suppression Motion, 5/20/19, at 2.
____________________________________________
1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
J-S09007-21
On August 6, 2019, the trial court held a hearing on Appellant’s motion.
As the trial court ably explained, the following evidence was produced at the
hearing:
Philadelphia Police Officer Fred MacConnell testified to the
following at the evidentiary hearing on Appellant’s
suppression motion: On August 23, 2018, at approximately
10:10 p.m., in response to numerous complaints about the
illegal sales of narcotics, the officer set up surveillance at
4901 North Fifth Street, a “high narcotics location” in
Philadelphia. At the time, Officer MacConnell had been a
Philadelphia Police officer for nearly fourteen years and had
conducted “hundreds” of surveillance operations.
The property located at 4901 North Fifth Street is a “Chinese
store.” Officer MacConnell testified that the police “received
numerous complaints for [narcotics] sales” around and inside
the store. The store is small with no tables inside for
customers to sit and eat. It has large windows, which one
can see through. Officer MacConnell testified, “You can see
anybody in there.”
Shortly after he set up the surveillance, the officer observed
an unknown Black male sitting on the steps at the location.
At approximately 10:15 p.m., Officer MacConnell saw
Appellant and another male, who was later identified as
Javier Hicks, approach the male sitting on the steps. The
three men engaged in a brief conversation and then walked
inside the store.
Officer McConnell was less than fifteen feet from Appellant
and the other men inside the store. The officer saw Appellant
and Mr. Hicks each hand an unknown amount of United
States currency to the unidentified male. The male then
“reached into his pants pocket, removed small objects, and
handed them” to Appellant and Mr. Hicks, both of whom
exited the store.
In consideration of his nearly fourteen years of experience,
his observations of Appellant’s conduct, and his knowledge of
the area in which the hand-to-hand transaction occurred,
-2-
J-S09007-21
Officer MacConnell “believed a narcotics transaction had just
taken place.” Therefore, the officer requested backup officers
to stop Appellant and Mr. Hicks.
Police Officer MacConnell further testified that Officer Henry
stopped Appellant in the 500 block of West Ruscomb Street
and recovered “a silver Taurus .357 revolver . . . loaded with
six live rounds.” Also recovered from Appellant was one clear
plastic jar containing a green leafy substance, which tested
positive for marijuana.
Appellant testified at the evidentiary hearing and stated he
went to the store with Mr. Hicks, who bought a cigar.
Appellant claimed that he did not purchase marijuana from
anyone at the store because he already had marijuana in his
backpack.
[The trial court] considered the testimony of the witnesses as
well as the arguments of counsel and found Officer
MacConnell’s testimony credible. The police had probable
cause to arrest Appellant. Accordingly, the court denied the
suppression motion. Appellant then stipulated to incorporate
the testimony from the evidentiary hearing and proceeded to
a bench trial.
Trial Court Opinion, 11/16/20, at 1-3 (some capitalization omitted).
Following the bench trial, the trial court found Appellant guilty of the
charged crimes. On January 6, 2020, the trial court sentenced Appellant to
serve an aggregate term of three-and-one-half to seven years in prison for
his convictions. Appellant filed a timely notice of appeal from his judgment of
sentence. He raises the following claim to this Court:
Whether the police officer had probable cause to conduct a
warrantless search of [Appellant’s] person during a custodial
detention that violated his Fourth Amendment rights against
unreasonable searches and seizures?
A. [Appellant] was in a custodial detention and did not
consent to the search.
-3-
J-S09007-21
B. The gun found on [Appellant’s] person was not in plain
view.
C. The police officer who searched [Appellant’s] person
was not conducting a patdown search for his safety.
D. There were no exigent circumstances to support the
warrantless search.
E. There was no probable cause to support the
warrantless search.
Appellant’s Brief at 6.
We have reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Roxanne E. Covington. We conclude that Appellant is not
entitled to relief in this case, for the reasons expressed in Judge Covington’s
November 16, 2020 opinion. Therefore, we affirm on the basis of Judge
Covington’s thorough opinion and adopt it as our own. In any future filing
with this or any other court addressing this ruling, the filing party shall attach
a copy of Judge Covington’s November 16, 2020 opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
-4-
Circulated 09/03/2021 12:37 PM
0022_Opinion