Com. v. Taylor, J.

J-S59012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN E. TAYLOR,
Appellant No. 710 EDA 2017
Appeal from the Judgment of Sentence Entered January 18, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006515-2016
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 01, 2017
Appellant, Justin E. Taylor, appeals from the judgment of sentence of a
$500 fine, imposed following his conviction for possession of small amount
of marijuana. Appellant asserts that the trial court erred when it denied his
motion to suppress the seized physical evidence. After careful review, we
affirm.
The trial court summarized the operative facts of this case as follows:
On July 5, 2016 Officer Michael Taylor and Officer Garay of the
Upper Darby Police Department were working as tactical
narcotics officers patrolling the area of 2020 Garrett Road in
Upper Darby. N.T.[,] 1/18/17[, at] 5-6. Complaints about
marijuana usage in the parking garage of this apartment
complex led the officers to park their vehicle and patrol the area
on foot. Id. at 7, 23. Officer Taylor testified credibly that as
they were walking through an alley that led to the parking
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* Former Justice specially assigned to the Superior Court.
J-S59012-17
garage he saw [Appellant] exit the apartment complex with his
head down holding what the officer believed to be a "marijuana
cigar" between his fingers. At the same time Officer Taylor
detected the strong odor of marijuana. Id. at 7-8. [Appellant]
was, at this point, about twenty feet away from the officers. Id.
at 9-10. Officer Taylor observed that [Appellant] looked up and
"cupped" his hand when he saw the police officers, thereby
concealing the cigar within his hand. Id. at 9-11.
The officers continued to approach [Appellant] and Officer
Taylor asked, "What's that?" [Appellant] replied, "it's just a little
bit of weed." Id. at 12. Officer Taylor asked [Appellant] for the
cigar and he handed it over. He was then handcuffed and
arrested. In a search incident to the arrest[,] Officer Taylor
found a grinder and a bag of marijuana in a backpack that
[Appellant] was carrying. Id. at 12. Before the inquiry that led
to [Appellant]'s admission[,] the officers did not ask [Appellant]
to stop, they did not ask him to come to them and they did not
impede[] his progress or obstruct his path. Id. at 12.
Aspects of [Appellant]'s testimony added credibility to
Officer Taylor's testimony. [Appellant] testified that he was
surprised when he came upon the officers in the alleyway and
that he had been walking along with the "marijuana cigar" in his
hand. When he saw the officers he hid it from view by cupping it
in his hands. See id. at 38-44. [Appellant] testified that during
the initial interaction he was not told that he was under arrest
and that the officers did not threaten or yell at him. Guns were
not displayed. Id. at 42-43. He maintained that he was
immediately stopped and was not free to leave. Id. at 41. He
admitted[,] however, that he was not arrested and searched
incident to that arrest until after he admitted that he was holding
"weed." Id. at 42.
Trial Court Opinion (TCO), 4/3/17, at 3-4.
The Commonwealth charged Appellant with possession of a small
amount of marijuana (PSAM), 35 P.S. 780–113(a)(31), and possession of
drug paraphernalia, 35 P.S. 780–113(a)(32), the latter of which was
subsequently withdrawn. Appellant filed an omnibus pretrial motion on
November 28, 2016, in which he sought, inter alia, suppression of the seized
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contraband. Appellant filed a supplemental suppression motion on January
9, 2017, and a suppression hearing was held on January 18, 2017. After
denying the motion to suppress, the trial court immediately proceeded to a
stipulated, non-jury trial, where the court found Appellant guilty of PSAM
and ordered him to pay a $500 fine. No other penalties were imposed.
Appellant filed a timely notice of appeal, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued is Rule 1925(a) opinion
on April 3, 2017. Appellant now presents the following questions for our
review:
I. Did the lower court err by refusing to suppress the physical
evidence obtained when the officers did not have
reasonable suspicion to stop, search or detain Defendant
without warrant?
II. Did the lower court err by refusing to suppress the physical
evidence obtained pursuant to a search warrant whose
Affidavit of Probable Cause lacked sufficient information to
establish probable cause on its face?
III. Did the lower court err by refusing to suppress the physical
evidence where the court considered information outside of
the affidavit in support of the search warrant to justify a
finding of probable cause?
Appellant’s Brief at 6.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable James P.
Bradley, we conclude Appellant’s claims merit no relief. In its opinion, the
trial court comprehensively discusses and properly disposes of the issues
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presented. See TCO at 4-7. Accordingly, we affirm based on the trial
court’s Rule 1925(a) opinion.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA ti
CRIMINAL DIVISION
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COMMONWEALTH OF PENNSYLVANIA CP-23-CR-6515-2016 �l
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JUSTIN TAYLOR
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A Sheldon Kovach, Esquire, on behalf of the Commonwealth i
James Lee, Esquire, on behalf of the Defendant /' !
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OPINION ij
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Bradley, J. FILED: �
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After a stipulated non-jury trial the Defendant, Justin Taylor, was found guilty of gI
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possessing a small amount of marijuana, 1an ungraded misdemeanor. A fine of $500.00 wasI
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Imposed at sentencing on January 18, 2017. A timely Notice of Appeal was filed on February I
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17, 2017. Defendant was ordered to file a Concise Statement of Errors Complained of on �
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Appeal. Defendant complied and has raised several claims that are related to his pre-trial I
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motion to suppress. Specifically, Defendant claims: ll
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1) The Commonwealth failed to meet Its burden in the Motion to Suppress; I
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2) The Police Officers lacked reasonable suspicion to stop, search or detain �
Justin Taylor; I
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3) The Police Officer lacked probable cause to arrest Justin Taylor; !l
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1 35 ra.c.S.A, §780· 113(a)(31)(1)
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4) The Affidavit of Probable Cause should be stricken due to the fact that it �3
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failed to articulate reasonable suspicion or probable cause to stop, search, �
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detain and arrest Justin Taylor; and
TI1e Police Officer's testimony should be limited to the facts articulated in
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the Affidavit of Probable Cause due to the fact that his testimony grossly m
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contracts the facts In the aforementioned document and supplemented )j
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key facts that were clearly meant to embellish his testimony for the �
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purposes of the Motion to Suppress hearing. l
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Concise Statement of Errors Pursuant to Pennsylvania Rules of Appellate Procedure 1925(b). I.�
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At the January 18, 2017 hearing trial counsel stated his claims with specificity and II
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particularity: "It is our contention that the officers in this case did not have reasonable 1
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suspicion or probable cause to stop, search, detail, or frisk my client in any shape form, or I
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fashion" in violation of the Fourth Amendment and the Pennsylvania Constitution. I
When a defendant challenges the admissibility of evidence on Fourth Amendment
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and/or Article I, Section 8 grounds the Commonwealth bears the burden of proving by a �@
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preponderance of the evidence that the evidence was lawfully seized. � CornmQlliY.ealth .s. �
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Romero, 138 A.3d 21, 28 (Pa. Super. 2016). When considering a motion to suppress the �
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court sits as the tactflnder and passes on the credibility of witnesses and the weight to be I�
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given their testimony. s_e.e Crunmom.veallh v. Roche, 153 A.3d 1063, 1067 (Pa. Super. �j
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2017); Qm)monwe896 A.2d 583, 585 (Pa.Super. 2006). The court heard I
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testimony from Officer Michael Taylor of the Upper Darby Police Department and from the I1
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Defendant, Justin Taylor on January 18, 2017. The credible testimony established the �
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following facts. �J
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[ADD5]
On July S, 2016 Officer Michael Taylor and Officer Garay of the Upper Darby Police
Department were working as tactical narcotics officers patrolling the area of 2020 Garrett
Road In Upper Darby. N.T. 1/18/17 pp. 5-6. Complaints about marijuana usage In the
parking garage of this apartment complex led the officers to park their vehicle and patrol
area on foot. Id, at 7, 23. Officer Taylor testified credlbly that as they were walking through
an alley that led to the parking garage he saw Defendant exit the apartment complex with
his head down holdlng what the officer believed to be a "marijuana cigar" between his
fingers. At the same time Officer Taylor detected the strong odor of marijuana. Id. at 7-8.
The Defendant was, at this point, about twenty feet away from the officers. Id, at 9-10.
Officer Taylor observed that the Defendant looked up and "cupped" his hand when he saw
the police officers, thereby concealing the cigar within his hand. Id, at 9-11.
The officers continued to approach the Defendant and Officer Taylor asked, \\What's
that?" Defendant replied, "it's just a little bit of weed." Id.,_ at 12. Officer Taylor asked the
Defendant for the cigar and he handed It over. He was then handcuffed and arrested. In a
search lncldent to the arrest Officer Taylor found a grinder and a bag of marijuana in a
backpack that the Defendant was carrying. ld.. at 12. Before the inquiry that led to
Defendant's admission the officers did not ask the Defendant to stop, they did not ask him
come to them and they did not impeded his progress or obstruct his path . .W. at 12.
Aspects of the Defendant's testimony added credibility to Officer Taylor's testimony.
Defendant testified that he was surprised when he came upon the officers In the alleyway
and that he had been walking along with the "marijuana cigar" In his hand. When he saw
officers he hid it from view by cupping it in his hands. See W. at 38- 44. Defendant testified
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that during the inltial interaction he was not told that he was under arrest and that the
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officers did not threaten or yell at him. Guns were not displayed. I.ct. at 42�43. He maintained
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that he was Immediately stopped and was not free to leave. Id. at 41. He admitted however]
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that he was not arrested and searched incident to that arrest until after he admitted that he I
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was holding "weed." Id. at 42. ;�
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Defendant claims that the officers stopped the Defendant without reasonable
suspicion. In Commonwealth v. CQUins, 9�0 A.2d 1041, 10% (Pa. Super. 2008) the Court
explained:
There are three categories of police Interactions which classify the level of
intensity in which a police officer Interacts with a citizen, and such are measured
on a case by case basis. Traditlonally, this Court has recognized three categories
of encounters between citizens and the police. These categories include (1) a
mere encounter, (2) an Investigative detention, and (3) custodial detentions. The
first of these, 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
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. (citations omitted).
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To determine whether a mere encounter rises to the level of an
Investigatory detention, we must discern whether, as a matter of law, the police
conducted a seizure of Um person involved. To decide whether a seizure has
occurred, a court must consider all the circumstances surrounding the encounter
to determine whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not free to decline the
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officer's request or otherwise terminate the encounter. Thus, the focal point of
our Inquiry must be whether, considering the circumstances surrounding the
Incident, a reasonable person innocent of any crime, would have thought he was
being restrained had he been in the defendant's shoes.
ld., at 1046·47. The "level of Intrusion Into a person's liberty may change during the
course of the encounter" and so the record must be carefully scrutinized for "evidence
of such changes.'' Id. citing Commonwealth v. BJ�!{, 860 A.2d 567, 572 (Pa. Super.
2004).
In thls case the Interaction between the officers began as a mere encounter and
quickly escalated, culminating In an arrest based on probable cause to believe that the
Defendant possessed marijuana. The officers encountered the Defendant as they
walked down the alleyway on patrol. As their paths met during this "mere encounter"
reasonable suspicion quickly developed. Officer Taylor detected the odor of burning
marijuana and he saw Defendant holding a cigar that he belleved contained marijuana.
This conclusion was based on his training and experience, his observation of the object
and on the Defendant's efforts to conceal the object.� N.T. 1/18/17 pp. 5-6; 9·10.
Officer Taylor then asked the Defendant what he was holding and Defendant's response
provided probable cause to believe that he was unlawfully In possession of marijuana.
The claim set forth in paraqraph 4 of Defendant's "Concise St.atement of Errors
Pursuant to Pennsylvania Rules of Appellate Procedure 1925(b)" is patently frivolous.
Evidence that ls seized by the police through conduct that is unlawful under the Fourth j
Amendment or Article I, Section 8 is inadmissible in a criminal prosecution pursuant to �
the "exclusionary rule." Defendant claims that the affidavit of probable cause that Is
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attached to the Criminal Complaint should be "stricken" because it fails to articulate
reasonable suspicion to stop or probable cause to arrest. Defendant seems to conflate
what would be a challenge to the "four corners" a search warrant with the clalm that
the Defendant was subject to an unlawful warrantless arrest without probable cause. In
any case, the remedy would not be to "strike" the affidavit of probable cause attached
to the Criminal Complaint but to suppress the illegally obtained evidence. Cf,
Co.rnmonwegJth v. __ flnley, 860 A.2d 132, 135 (Pa. Super. 2004) quoting CQmmonwealth
v. HanJ111e, 583 A.2d 1245, 1246, Fn. 2 (Pa. Super, 1990); .GQmn1Qnwealth _�.J:lli.Y-e�,
898 A.2d 1089, 1091 (Pa. Super. 2006); and .Commonwealth v. Dobbins., 934 A.2d
1170, 1181 (Pa. 2007) citing Comrnonw�lth v. GJb.s.0_11, 638 A.2d 203, 205 (Pa. 1994)C
... [Tjhe trial court, ... observed that the proper remedy where evidence has been
discovered by an Illegal search and/or Incident to an illegal arrest is suppression, not
dismissal. We aqree.")
Flnally, the claim that the "Police Officer's testimony should be limited to the
facts articulated in the Affidavit of Probable Cause," has no basis in the law. Defense
counsel seized the opportunity to challenge Officer Taylor's credlbillty based on facts
surrounding the interaction that were not included in the Affidavit of Probable Cause.
The Court considered the testimony ellclted during defense counsel's thorough cross-
examination and considered the testimony of the Defendant as well, and assessed the
credibility of both witnesses. The facts that were found were determined with the
credibility of the witnesses in mind and are supported by the record. � fl.9.
(QmD1Q..IBY�nltlL'L.J;1.rnobdy, 823 A.2d 180, 183 (Pa. Super. 2003) ("It is within the
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suppression court's sole province as factfinder to pass on the credibility of witnesses
and the weight to be given to their testimony. The suppression court Is free to believe
all, some or none of the evidence presented at the suppression hearing.°) (citations
omitted).
In light of the foregoing it Is respectfully submitted that judgment of sentence
should be affirmed.
BY THE COURT:
J�JM.i:�-"_
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