Com. v. Black, N.

J-A15045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATALIE BLACK :
:
Appellant : No. 792 WDA 2021
Appeal from the Judgment of Sentence Entered May 12, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003531-2020
BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: October 7, 2022
Natalie Black (“Black”) appeals from the judgment of sentence imposed
following her conviction for possession of a controlled substance.1 We affirm.
Based on our disposition, we summarize the factual background of this
appeal from the suppression record. In the evening of September 4, 2019,
the Pittsburgh Bureau of Police conducted surveillance of the Allegheny
Dwellings housing complex (“the complex”), a high-crime area known for drug
sales. See N.T. Suppression Hearing, 3/11/21, at 23. Detectives Ronald
Doria and Joseph Bucci, along with Officer Baczynsky,2 were on patrol.
Detective Reginald Eiland was in a separate area viewing live feeds from
surveillance cameras at the complex. See id. at 11, 16-17.
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1 See 35 P.S. § 780-113(a)(16).
2 The record does not contain Officer Baczynsky’s first name.
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Detective Eiland alerted the patrol officers to the presence of a man,
later identified as Jermaine Robinson (“Robinson”), and a woman, later
identified as Black, walking toward a parking lot at the complex. See id. at
12. The patrol officers got out of their vehicle and approached the pair. When
Robinson and Black saw the patrol officers approaching, they momentarily
walked behind a parked vehicle. See id. at 24. From the camera angle he
was watching, Detective Eiland saw Black make a throwing or tossing motion
while she was behind the vehicle, but he was not able see the item thrown.3
See id. at 14.
The patrol officers asked whether Robinson and Black lived in the area
or at the complex. When they responded that they did not, the officers
“detained” them. See id. at 24 (indicating Detective Bucci’s testimony that
the officers detained Robinson and Black and noting that there were “no
trespassing signs” posted in the area). As the other officers questioned Black,
Detective Bucci walked around the car and saw two “stamp bags” on the
ground. See id. Thereafter, Detective Bucci placed Black under arrest,
searched Black’s purse incident to arrest, and he discovered additional drugs.
See id. at 28.
At some point during the interaction between Robinson, Black, and the
patrol officers, Detective Eiland rewound and reviewed recordings from other
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3 Detective Bucci, who was approaching Robinson and Black on foot, did not
see Black make a throwing motion when she was behind the vehicle. See id.
at 27. The record does not indicate whether any of the other patrol officers
saw the throwing motion.
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surveillance cameras, and he observed “white objects on the ground that were
not there prior to [Black] making the throwing motion.” See id. at 16.
Detective Eiland called Detective Doria and informed him of his observations
from the surveillance cameras.4 See id.
The patrol officers issued Black a summons and allowed her to leave the
complex. Subsequent testing established that the drugs found in Black’s purse
were a mixture of heroin and fentanyl. The Commonwealth charged Black
with possession of a controlled substance, tampering with physical evidence,
and defiant trespass.5
Black filed a suppression motion claiming that the search of her purse
was unlawful because officers lacked probable cause to arrest her and conduct
a search incident to arrest. See Motion for Suppression, 9/29/20, at ¶¶ 13-
15. The trial court held a suppression hearing at which Detectives Eiland and
Bucci testified about the probable cause for Black’s arrest and Detective
Bucci’s search of Black’s purse incident to the arrest. See N.T. Suppression
Hearing, 3/11/21, at 2, 4 (indicating that the Commonwealth was calling
Detectives Eiland and Bucci in response to Black’s challenge to whether
probable cause existed). At the conclusion of the hearing, Black asserted that
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4It is unclear from the suppression record at what point Detective Eiland called
Detective Doria during the patrol officers’ interactions with Robinson and
Black. The trial court appears to have found that Detective Eiland informed
the patrol officers of his observations some time before Detective Bucci
recovered the stamp bags from behind the car. See Trial Court Opinion,
8/16/21, at 6; N.T. Suppression Hearing, 3/11/21, at 36.
5 See 18 Pa.C.S.A. §§ 4910, 3503.
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Detective Bucci lacked probable cause at the time he “stopped” her because
he had no knowledge of the “supposed throwing motion” and, therefore, “all
of the stop, all of the seizure happened in advance of probable cause or any
supposed probable cause the Commonwealth would put forward to try to
justify it.” See id. at 30. The trial court framed the issue as whether Detective
Eiland conveyed the information before the “detention” such that “probable
cause” would have existed and thereafter denied Black’s suppression motion
“[b]ased on the testimony of the officers.” See id. at 36. Black filed a motion
for reconsideration of the trial court’s suppression ruling.
The trial court denied Black’s motion for reconsideration after hearing
the parties’ arguments. Black immediately proceeded to a stipulated nonjury
trial at which the court found her guilty of possession of a controlled
substance.6 That same day, the trial court sentenced her to six months of
probation. Black timely appealed, and both she and the trial court complied
with Pa.R.A.P. 1925.
Black raises the following issue for review:
Did the trial court err by denying Ms. Black’s motion to suppress
as the search here occurred before officers obtained reasonable
suspicion that criminal activity was afoot?
Black’s Brief at 5.
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6The trial court found Black not guilty of tampering with physical evidence
and defiant trespass.
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As suggested by her statement of the question involved on appeal,
Black’s issue focuses on whether the officers had reasonable suspicion to stop
her and conduct an investigative detention. Before addressing this issue,
however, we initially consider whether she has preserved it for review. See
Commonwealth v. Smith, 210 A.3d 1050, 1059 (Pa. Super. 2019) (holding
that appellant Smith waived a suppression by failing to raise that claim at his
suppression hearing or include it in his statement of matters complained of on
appeal).
Pennsylvania Rule of Criminal Procedure 581 requires that a motion to
suppress “state specifically and with particularity . . . the grounds for
suppression[] and the facts and events in support thereof.” Pa.R.Crim.P.
581(D). A defendant’s motion to suppress identifies the issues on which the
Commonwealth bears its burden of demonstrating that the challenged
evidence was constitutionally obtained. See Commonwealth v. Dixon, 997
A.2d 368, 376 (Pa. Super. 2010); see also Pa.R.Crim.P. 581(H). This Court
will not address new legal theories raised for the first time on appeal. See
Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012); see also
Pa.R.A.P. 302(a).
Our review of the record establishes that Black’s suppression motion
claimed that the discovery of the drugs in her purse was unlawful because the
police lacked probable cause to arrest her and conduct a search incident to
arrest. See Motion for Suppression, 9/29/20, at ¶¶ 13-15. In response to
Black’s motion to suppress, the Commonwealth presented evidence
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concerning her arrest and the search of her purse, see N.T. Suppression
Hearing, 3/11/21, at 2, and the trial court thereafter determined the search
of Black’s purse fell within the search incident to arrest exception for a
warrantless search. See Trial Court Opinion, 8/16/21, at 6-7. At no time
during the litigation of her motion to suppress did Black state that she was
challenging the absence of reasonable suspicion, nor did she raise the issue
in her Rule 1925(b) statement.7
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7Black’s Rule 1925(b) statement claimed, in relevant part, that the trial
court:
a. . . . erred in denying Ms. Black’s Motion to Suppress. Ms. Black
was arrested without the requisite probable cause to do so
under both the Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania
Constitution. Specifically, the relevant officers’ testimony
failed to aver facts sufficient to establish probable cause for an
arrest. All evidence recovered as a result of this unlawful
arrest is therefore fruit of the poisonous tree and should have
been suppressed.
b. . . . erred in denying Ms. Black’s Motion to Suppress, because
the arresting officer searched her purse without a warrant, and
no exception to the warrant requirement applied under the
facts and circumstances at hand. The search of Ms. Black’s
purse therefore ran afoul of the protections provided by both
the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution.
Black’s Rule 1925(b) Statement, 7/7/21, at 2. Because her Rule 1925(b)
statement only challenged her arrest without probable cause, we could
separately find Black’s issue on appeal waived for her failure to include it in
her Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (stating that
“[i]ssues not included in the [1925(b)] Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived”).
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In her appellate brief, Black now asserts that she was detained without
reasonable suspicion. See Black’s Brief at 5. This is a new and distinct legal
theory that she did not specifically preserve in her motion to suppress, argue
at the suppression hearing, or include in her Rule 1925(b) statement.8 While
Black previously focused on her arrest and the search incident thereto, her
arguments before this Court concern a different phase of her interaction with
the officers.9 Thus, because Black raised her claim that she was subject to an
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8 See generally Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014)
(discussing the three categories of interactions between citizens and police,
namely, (1) a mere encounter that does not require any level of suspicion or
carry any official compulsion to stop or respond; (2) an investigative detention
that permits the temporary detention of an individual if supported by
reasonable suspicion; and (3) an arrest or custodial detention, which must be
supported by probable cause).
9We acknowledge that the trial court’s Rule 1925(a) opinion did not discuss
waiver. Instead, the court noted that Black “seemingly argued” at the
suppression hearing that the patrol officers detained her when they asked
whether she lived at the complex. See Trial Court Opinion, 8/16/21, at 5.
The court concluded that Black’s interaction with the patrol officers was a mere
encounter until Detective Bucci discovered the stamp packets on the ground.
See id. at 5-6.
Our review of the suppression record reveals that the Commonwealth
did not elicit testimony about the circumstances surrounding the patrol
officer’s initial questioning of Black or otherwise clarify Detective Bucci’s
testimony that he believed Black was detained after she and Robinson stated
that they did not live at the complex. See N.T. Suppression Hearing, 3/11/21,
at 24. However, because Black’s suppression motion focused on her arrest
and the search of her purse incident to arrest, it would be inappropriate to
review the merits of Black’s appellate issue challenging an investigative
detention when she did not afford the Commonwealth the opportunity to
develop a more complete record in the trial court. See Commonwealth v.
Freeman, 128 A.3d 1231, 1242 (Pa. Super. 2015) (concluding that “when a
(Footnote Continued Next Page)
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investigative detention without reasonable suspicion for the first time in her
appeal, we conclude her appellate issue is waived.10
In sum, finding no preserved claims for review, we are constrained to
affirm the judgment of sentence. See Smith, 210 A.3d at 1059.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2022
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defendant’s motion to suppress does not assert specifically the grounds for
suppression, he or she cannot later complain that the Commonwealth failed
to address a particular theory never expressed in that motion).
10We acknowledge that Black filed a motion for reconsideration asserting that
she was “detained” before the officers noticed the stamp bags on the ground.
See Motion for Reconsideration, 3/13/21, at ¶ 15. However, her motion for
reconsideration does not alter our conclusion that Black waived her issue on
appeal. This Court has held that a motion for reconsideration does not cure a
defendant’s failure to state her grounds for relief before the trial court rules
on her suppression motion. See Commonwealth v. Prizzia, 260 A.3d 263,
270-71 (Pa. Super. 2021). Additionally, Black framed her argument for
reconsideration in terms of the absence of probable cause and did not mention
a challenge to the lack of reasonable suspicion. See Motion for
Reconsideration, 3/13/21, at 14 (asserting, “at the time that [Black] was
stopped no probable cause existed to justify the stop”).
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