Com. v. Floyd, T.

J-S17024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRACEY FLOYD, SR.
Appellant No. 403 EDA 2016
Appeal from the Judgment of Sentence Entered November 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0012517-2014
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017
Appellant Tracey Floyd, Sr. appeals from the November 25, 2015
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County (“trial court”), following his bench convictions for carrying a firearm
without a license and carrying a firearm on the streets of Philadelphia.1
Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly,
on October 7, 2014, City of Philadelphia Police Officer Judith Kinniry
observed, in plain view, an open bottle of alcohol in Appellant’s vehicle.
When Officer Kinniry attempted to retrieve the bottle from inside the vehicle,
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1
18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
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she discovered a gun. Appellant subsequently was charged with the above-
referenced offenses.
On March 17, 2015, Appellant filed a motion to suppress, arguing that
the police did not have probable cause to search his vehicle. On July 9,
2015, the trial court conducted a suppression hearing. It summarized in
detail the facts elicited at the hearing as follows:
Philadelphia Police Sergeant John McGinley, assigned to
the Advance Training Unit, testified that on October 17, 2014, at
approximately 1:30 p.m., he performed his tour of duty in the
6300 North 21st Street area of Philadelphia, Pennsylvania.
Officer McGinley stated that he first came in contact with
[Appellant], Tracey Floyd, Sr., and his son, Tracey Floyd, Jr.,
when he was flagged down in his patrol car. He noted that he
pulled over to speak to [Appellant] at which time [Appellant]
informed him of the landlord/tenant dispute and that the person
[Appellant] had the issue with was traveling eastbound on
Chelten Avenue. Sergeant McGinley stated the person
[Appellant] had the landlord/tenant dispute with was then
stopped. He testified that he then called for backup because
there were two vehicles stopped.
On cross-examination by Defense Counsel Daniel Alva,
representing [Appellant], Sergeant McGinley testified that while
he could not recall precisely how [Appellant] flagged him down,
it was by either standing on the sidewalk waving his hand or by
getting his attention seated in his vehicle and gesturing out from
the window. He further explained that he believed [Appellant]
was alone in the vehicle but was uncertain. Officer McGinley
testified there was a second vehicle which was occupied by the
son, Tracey Floyd, Jr., and another male. He stated [Appellant]
explained to him there was a previous landlord/tenant dispute at
the location of 5826 Crittenden in which [Appellant] had called
the police and the police investigated. Sergeant McGinley noted
that the landlord /tenant dispute occurred in the 14th District
where he was the patrol sergeant at the time. He then
corroborated [Appellant’s] information by verifying that officers
did indeed respond to an incident at said location. Sergeant
McGinley stated he was unaware of who requested police to
respond to the landlord/tenant dispute.
When questioned about Defense Exhibit 1 (D-1), . . .
Sergeant McGinley testified that it was a complaint form
prepared by Officer Czepiel for the Complainant, Tracey Floyd,
Sr. at 4826 Crittenden Street and at 1:16 p.m. Sergeant
McGinley stated [Appellant] flagged him down shortly after the
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reported incident, though he could not recall the precise time.
He explained the reason he called for backup was because there
was another vehicle following behind [Appellant] with one male
and female inside. Sergeant McGinley further explained that he
requested for general backup which took approximately a minute
to arrive. He noted that while he was waiting for backup, there
was a verbal dispute between [Appellant] and the male and
female in the second vehicle. Sergeant McGinley testified that
two female officers arrived as his backup, Officers Martinsen and
Kinniry. He stated he did not provide the officers with any
instruction once they arrived. Instead, he attempted to ensure
[Appellant] and the two individuals in the second vehicle
remained separated because they were “yelling and screaming.”
Sergeant McGinley explained that he was the supervisor on the
scene of the incident.
He further explained that if he gave any instruction to the
two female officers it was to keep [Appellant] and the other two
apart. Sergeant McGinley stated that [Appellant] was standing
on the corner of 21st Street and Chelten Avenue and they spoke
with thirty (30) and forty (40) feet between them. He testified
that [Appellant] was not his complainant at the time of the
incident because he was attempting to determine what had
occurred and ensure that the individuals in the second vehicle
were unarmed. Sergeant McGinley explained that after speaking
with [Appellant], he patted down Tracey Floyd, Jr. to make sure
it was safe for the other officers, himself, and [Appellant].
On cross-examination by Defense Counsel Jeremy Alva
representing Tracey Floyd, Jr., Sergeant McGinley testified that
once he separated [Appellant] and the other person from the
second car, he believed that Tracey Floyd, Jr. was stepping out
from a smaller vehicle with another male passenger. Sergeant
McGinley stated Tracey Floyd, Jr. was eventually standing on the
sidewalk near himself, [Appellant], and the other male. He
explained that while everyone was pacing back and forth on the
sidewalk[, h]e did not know if Tracey Floyd, Jr. ever walked
away from [Appellant], his father, or did anything else besides
pacing, in part because there was a lot of activity. Sergeant
McGinley noted that once Tracey Floyd, Jr. was standing on the
sidewalk, he was approximately five (5) to fifteen (15) feet away
from [Appellant’s] vehicle and he was “right next to it.” He
explained he could not recall whether Tracey Floyd, Jr. was on
the driver’s or the passenger’s side. Sergeant McGinley also
noted he did not recall if Tracey Floyd, Jr. ever went into the car
and added, “I’m not saying he did not either.”
Philadelphia Police Officer Judith Kinniry, assigned to the
35th District, testified that on October 17, 2014, at
approximately 1:30 p.m., she performed her tour of duty in the
6300 North 21st Street area of Philadelphia. She explained that
she was there because she and her partner, Officer Martinsen,
were called to backup 14th District officers. Officer Kinniry
further explained that when she arrived at the scene Sergeant
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McGinley and another officer had stopped two vehicles. She
testified that it was at the scene she came into contact with
[Appellant] and his son, Tracey Floyd, Jr. Officer Kinniry stated
that once she approached the scene Sergeant McGinley
requested she obtain the identification of the males. She
explained that Tracey Floyd, Jr. did not have identification on
him so they brought him over to the patrol car to further identify
him. Officer Kinniry remarked that Tracey Floyd, Jr. was frisked
for safety and that a set of brass knuckles were recovered.
She testified that she had witnessed Tracey Floyd, Jr.
going “in and out the rear of the vehicle,” which was a Ford
Expedition. She searched this area of the car where she
observed Tracey Floyd, Jr. and saw from the window an open
container of Colt 45 and retrieved it. Officer Kinniry stated the
bottle was wrapped in a white t-shirt and when she pulled it out
she felt something heavy and found a handgun wrapped inside.
She explained that when she recovered the handgun,
[Appellant], Tracey Floyd, Sr., was standing behind the vehicle
and stated, “that is not mine. I didn’t even know it was there.”
Officer Kinniry testified that he said these things without being
asked. She said after recovering the handgun she continued her
search of the car, went to the other side of the car, and
recovered two knives. Officer Kinniry stated she then asked
[Appellant] if there was any other weapons in the vehicle and
[Appellant] replied, “there might be a gun in the trunk or the
back hatch.” She testified [Appellant] gave his permission for
her to search the back hatch. She noted that once she went to
the back of the car, there was a blue bag. “It looked like one of
those bank bags with a zipper and lock.” Officer Kinniry testified
she recovered an unloaded .45 caliber Ruger from the bag and
ammunition, six (6) nine (9) millimeter rounds, which was
separated from the firearm.
On cross-examination by Defense Counsel Jeremy Alva,
Officer Kinniry stated she could not recall how long it took her to
arrive at the scene from the time she received the backup call.
She explained that once she arrived her patrol car was facing the
same way as the other vehicles. While she could not remember
the first thing she witnessed at the scene, she did remember
seeing Tracey Floyd, Jr. stepping out from the rear of the
vehicle. Officer Kinniry stated the passenger’s side was on the
same side as the sidewalk and that it was a one lane street
which had parking on both sides. She noted the only non-police
vehicles present were [Appellant’s] and Tracey Floyd, Jr.’s.
Officer Kinniry explained [Appellant’s] vehicles were a Ford
Expedition and a smaller car which were parked on the same
side of the sidewalk. She noted it was not until she stepped out
of her patrol car that she saw Tracey Floyd, Jr. and then
Sergeant McGinley told her to retrieve their identifications. She
further noted she did not know what Tracey Floyd, Jr. was
reaching for or what he was doing but witnessed him reaching
into the vehicle while standing on the sidewalk.
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Officer Kinniry testified she did not inform her partner of
what she had witnessed. After seeing Tracey Floyd, Jr. reach
into the rear of the vehicle, she took him to the back of her
patrol car. She stated that she recovered the brass knuckles
from a search of Tracey Floyd, Jr.’s person that occurred prior to
his placement into the patrol car. When presented with her prior
testimony from the preliminary hearing stating that [Appellant]
was the person who did not have identification, was frisked and
possessed the brass knuckles, Officer Kinniry clarified that she
meant Tracey Floyd, Jr.
She noted the white t-shirt, marked as Defense Exhibit 3
(D-3), recovered from the back seat of the Ford Expedition, was
the only t-shirt in question and that the alcohol was not
recovered. Officer Kinniry stated she believed there were five
(5) officers at the scene of the incident. When questioned why
she and her fellow officers chose to frisk Tracey Floyd, Jr. and
place him in the patrol car when they merely wanted to retrieve
identification, she stated they were further investigating him and
that he was fine with it. When further questioned why Tracey
Floyd, Jr. could not remain standing on the corner with five (5)
officers watching him while his name was checked, Officer
Kinniry replied it was because they decided not to let him remain
standing. Officer Kinniry further stated no police officer noticed
bulges on Tracey Floyd, Jr.’s person.
On cross-examination by Defense Counsel Daniel Alva,
Officer Kinniry testified she has six (6) years of experience on
the force and that one of the first things typically done upon
arriving at a scene is to determine “who’s friend and who’s foe.”
She stated when she arrived at the scene she was not informed
that [Appellant] and his son, Tracey Floyd, Jr. were complainants
and not the focus of the investigation. Officer Kinniry explained
that she arrived at the scene without any preexisting information
pertaining to who was the focus of the investigation.
When questioned about whether Sergeant McGinley
instructed her to retrieve identification in light of his testimony
stating that he did not instruct her to do so, Officer Kinniry
affirmed he did. When questioned further about Sergeant
McGinley’s instruction, she replied, “I don’t recall exactly what
he said but we knew what we needed to do was get ID’s from
the males involved.” In response to being asked if her individual
instinct led to her attempting to obtain identification instead of
being directed to, Officer Kinniry replied, “we asked him for ID.
He did not have it, no. So we asked him. We took him over to
the car like we generally do to look up information.” She noted
she believed [Appellant] was still with the other officers when
Tracey Floyd, Jr. was placed in the patrol car. Officer Kinniry
stated that while Tracey Floyd, Jr. was not handcuffed prior to
being placed in the patrol car, he could not voluntarily get out.
She stated that at no point did she find out [Appellant] was the
complainant.
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Officer Kinniry testified she first engaged with [Appellant]
once she found the gun in the rear of the vehicle wrapped in a t-
shirt when he said, “that is not mine.” She noted that after
recovering the knives and the handgun, the officers did not take
him into custody as an arrest and instead took him in as an
investigation, though he was not free to leave. Officer Kinniry
stated [Appellant] believed he had a Delaware permit to carry
firearms; the permit was discovered to be expired. She further
stated that while at the time [Appellant] was taken in for
investigation, she had asked [Appellant] if there were any other
weapons in the car to aid in the investigation.
On redirect-examination, Officer Kinniry testified
[Appellant] was not handcuffed when asked if there were any
other weapons in the car and had not been told he was under
arrest. She noted [Appellant] offered to retrieve the handgun,
but she said she would get it instead.
Philadelphia Police Officer Martinsen, assigned to the 35th
District, testified that on October 17, 2014, at approximately
1:30 p.m., she performed her tour of duty in the 6300 North
21st Street area of Philadelphia when she came into contact with
[Appellant]. She stated that while Tracey Floyd Jr. was sitting in
her patrol car, after Officer Kinniry found the handgun wrapped
in the t-shirt, he said, “that’s mine.” She had not asked Tracey
Floyd, Jr. any questions prior to him stating the handgun was
his, nor was she aware of the handgun before he made the
comment, which made her turn and look at Officer Kinniry who
was holding the handgun.
On cross-examination by Defense Counsel Jeremy Alva,
Officer Martinsen testified that Tracey Floyd, Jr. was in the patrol
car in order to check his identification.
[Appellant] testified that he called the police to his house
regarding the landlord/tenant dispute. He testified that once he
left with the police from the area, a male squatter at his house
driving a burgundy Trail Blazer SUV told him to pull over, and a
chase shortly ensued. [Appellant] noted the chase lasted about
five (5) minutes. He further noted that he was driving his
vehicle alone and his two sons were driving behind him in a
Nissan Maxima. He testified he saw the sergeant in his patrol
car as he was attempting to get away from the male squatter.
[Appellant] said once he saw Sergeant McGinley he rolled down
his window and notified him that someone was following him and
asked whether he received the call pertaining to the 5826
Crittenden Street landlord/tenant dispute. [Appellant] noted the
sergeant then backed up his car and cut off the squatter’s
vehicle, preventing him from proceeding. He stated once the
sergeant pulled the other car over, he told them to get out of the
vehicle and then started to speak to them.
[Appellant] testified more police officers arrived, including
two (2) African-Americans and two (2) female officers. He
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explained he only heard the patrol car of the female officers
arrive, and did not see either of them until one seized his son,
Tracey Floyd, Jr. [Appellant] testified he told Tracey Floyd, Jr. to
remove the car keys from the ignition since he was speaking to
the officers and that his son was in the front on the passenger’s
side, not the rear of the car.
On cross-examination, [Appellant] testified the individuals
the sergeant pulled over were yelling. He stated Tracey Floyd,
Jr. was not going in and out of the car but just reached in to
grab the key after he asked him to turn the car off. He also
affirmed the presence of the handgun wrapped in a t-shirt and
that he told Officer Martinsen that it was not his. [Appellant]
testified that after Officer Kinniry placed his son in the patrol car,
she opened the driver’s door and starting searching the middle
part of the car. He stated it was once she started searching the
middle part of the car that he said, “if you're going to search my
car, I'm going to let you know now I got two pistols in there that
I went to the range and I didn’t take them out.” [Appellant]
noted the handguns were not loaded, and that one was in a blue
bag which was a lock. He stated, “I keep it in a safe and when I
take it to the range, I put in in this case with a key and lock and
I take the key with me.” He testified the other gun was wrapped
in a t-shirt or towel.
On redirect-examination, [Appellant] testified he was going
to the range from his house before the chase occurred. He
explained he was going to Philadelphia to take pictures to try to
evict the squatters from his house because he had received his
landlord/tenant license.
Trial Court Opinion, 6/30/16, at 2-11 (footnotes and internal record citations
omitted). Finding Appellant’s testimony incredible, the trial court denied the
suppression motion. The case proceeded to a bench trial, at which Appellant
was found guilty of carrying a firearm without a license and carrying a
firearm on the streets of Philadelphia. On November 25, 2015, the trial
court sentenced Appellant to four years’ probation for carrying a firearm
without a license and a concurrent one year of probation for carrying a
firearm on the streets of Philadelphia.
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On appeal, Appellant raises only a single issue for our review. He
argues that “the trial court err[ed] in denying [his] motion to suppress any
and all evidence used against him at trial[.]” Appellant’s Brief at 6. In this
regard, he argues only that the “evidence put forth by the Commonwealth to
support [the] search of [his] vehicle” was not “credible.” Id. at 10.
Appellant claims that “[t]he testimony of Officer [] Kinniry at the
suppression hearing was incredible and insufficient as a matter of law to
meet the standards required to establish reasonable suspicion or probable
cause.” Id. at 10-11. Specifically, Appellant argues that Officer Kinniry’s
testimony that she observed in plain view an open bottle of alcohol was
merely an “uncorroborated allegation.” Id. In essence, Appellant asks us to
credit his version of the facts, i.e., no open container of alcohol was present
in his vehicle, over Officer Kinniry’s.
In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those
facts are correct. When reviewing the rulings of a [trial] court,
the appellate court considers 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. When the record supports the findings of the [trial]
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our
scope of review is limited to the evidence presented at the suppression
hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).
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Here, we must reject Appellant’s sole claim on appeal as he challenges
only the trial court’s weight of the evidence and credibility determinations.
As we noted above, this Court may not re-weigh the evidence or substitute
its judgment for that of the trial court sitting as the fact-finder. See Griffin,
supra; see also Commonwealth v. Queen, 639 A.2d 443, 445 (Pa. 1994)
(noting that an appellate court may “not substitute [its] credibility
determinations for that of the suppression court.”). Thus, it is settled that
we may not disturb a trial court’s credibility determinations. See
Commonwealth v. Chine, 40 A.3d 1239, 1244 (Pa. Super. 2012), appeal
denied, 63 A.3d 773 (Pa. 2013). Accordingly, we reject Appellant’s
argument for want of merit.2
Judgment of sentence affirmed. Appellant’s motion to strike denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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2
Appellant filed a motion to preclude and/or strike Appellee’s brief as
untimely failed and for failure to serve. In light of our disposition, the
motion is denied.
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