Com. v. Braxton, I.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ISAIAH BRAXTON, : No. 2921 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, September 16, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014113-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
Isaiah Braxton appeals the judgment of sentence in which the Court of
Common Pleas of Philadelphia County sentenced him to serve a term of
three to six years’ imprisonment for the offense of possession of a firearm
prohibited, 18 Pa.C.S.A. § 6105(a)(1). He was concurrently sentenced to a
term of three to six years’ imprisonment for carrying a concealed weapon,
18 Pa.C.S.A. § 6106(a)(1). The trial court also imposed a term of two years’
probation for carrying a firearm on Philadelphia streets, 18 Pa.C.S.A. § 6108,
to be served consecutively to the prison sentence. Appellant was also
concurrently placed on probation for a term of two years for possessing an
instrument of crime, 18 Pa.C.S.A. § 907(a). Appellant was convicted of
possession of a controlled substance but was sentenced to no further
penalty. 35 P.S. § 780-113(a)(19).
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The record reflects that on October 12, 2012, Officer Jorge Soto
(“Officer Soto”) of the City of Philadelphia Police Department conducted a
narcotics surveillance from an unmarked vehicle in the area of 60th and
Market Street in Philadelphia. (Notes of testimony, July 2, 2013 at 7-8.) At
approximately 8:52 p.m. on October 12, 2012, Officer Soto
observed an unknown black male wearing a brown
Jeff cap, tan coat, and brown slacks. He exited a
white Lexus 300 -- RX 300 . . . .
He pulled up . . . to the corner -- actually, just east
of 60th on Market Street. He parked. He exited that
vehicle. He walked over to the bar and approached
the [appellant].
Both the [appellant] and the unknown black
male engaged in a brief conversation. After the brief
conversation, the unknown black male produced an
unknown amount of U.S. currency. He handed the
[appellant] an unknown amount of U.S. currency. In
return, the [appellant] then handed the unknown
black male unknown items in a pinching motion into
an open palm.
Id. at 9.
The unknown black male drove off, and the vehicle could not be
stopped. At approximately 8:55 p.m., Officer Soto observed an unknown
black male exit a black Durango that was parked at the same location as the
Lexus. Officer Soto saw the male approach appellant. After a brief
conversation, the unknown black male produced an unknown amount of U.S.
currency and gave it to appellant in return for “unknown items in a pinching
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motion to an open hand.” (Id. at 11-12.) After the transaction, appellant
walked to a white Chevy Malibu. Officer Soto then observed appellant reach
up towards the light fixture. He pulled it down. And
he put something . . . I observed a clear plastic bag
containing unknown items at that point . . . . He
placed the object into that little hole, replaced the
light fixture back up, and exited the vehicle and
crossed the street again.
Id. at 14. Officer Soto radioed for Officer Vincent Perone (“Officer Perone”)
to place appellant into custody. (Id. at 43.) Officer Perone found $972 on
appellant’s person. (Id. at 44.) Officer Kustra, an officer in the K-9 unit,
brought his dog, Yuri, to the scene. Yuri had a positive reaction to the
Chevy Malibu. (Id. at 46.)
Officer Ranae Jeffcoat (“Officer Jeffcoat”) obtained a search warrant to
search the Chevy Malibu. (Id. at 48.) Officer Jeffcoat recovered a silver
.45 caliber handgun that was loaded with one round in the chamber and
eight live rounds in the magazine, “along with one clear sandwich bag
containing 28-23 pink packets and two clear, along with two clear plastic
bags tied in a knot, alleged crack cocaine.” (Id. at 49-50.) The packets
were recovered from the inside of the Chevy Malibu inside the light fixture.
(Id. at 50.)
Appellant was charged with the five crimes for which he was convicted
as well as possession with intent to deliver crack cocaine, 35 P.S. § 780-
113(a)(30), for which he was found not guilty at trial.
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Appellant moved to suppress physical evidence, and alleged that the
police officers lacked a reasonable suspicion or probable cause to arrest him
and that there was not probable cause to search the Chevy Malibu.
The trial court conducted a hearing on the suppression motion on
July 2, 2013. Officer Soto testified regarding his observations of appellant
with the two individuals. Officer Soto also testified that he had been a police
officer for eight years and had worked in narcotics enforcement for six years
and had observed “thousands” of drug transactions on the street.
Officer Soto explained that in the typical drug transaction, one party walks
up to the other, they engage in a brief conversation, items are exchanged,
and the parties go their separate ways. Officer Soto testified that he
believed appellant exchanged drugs for money in the two encounters he
observed. (Id. at 10-11.) On cross-examination, Officer Soto admitted that
he did not know for sure that appellant exchanged drugs for money. (Id. at
26-28.)
Officer Perone testified regarding his arrest of appellant. The parties
stipulated that Yuri, the K-9 dog, had a positive reaction to the Chevy
Malibu. Officer Jeffcoat identified the search warrant and the affidavit for
the search warrant to search the Chevy Malibu. Officer Jeffcoat also testified
regarding the results of the search. Appellant testified that he owned the
Chevy Malibu that was confiscated by the police. (Id. at 72.)
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The trial court credited the testimony of the police officers and found
that based on Officer Soto’s years of experience, including six years in the
narcotics field unit and his experience observing thousands of drug
transactions, that he had probable cause to arrest appellant and denied the
motion to suppress the United States currency recovered incident to the
arrest. The trial court also found that the positive canine sniff gave rise to
probable cause to search the vehicle and that the affidavit of probable cause
included specific facts to establish probable cause to search the Chevy
Malibu where the crack cocaine was found. The trial court denied the motion
to suppress the fruits of the search of the Chevy Malibu.
Appellant contends that the trial court committed an error of law when
it denied the motion to suppress.
Initially, we note that our standard of review
when an appellant appeals the denial of a
suppression motion is well established. We are
limited to determining whether the lower court’s
factual findings are supported by the record and
whether the legal conclusions drawn therefrom are
correct. We may consider the evidence of the
witnesses offered by the Commonwealth, as verdict
winner, and only so much of the evidence presented
by [the] defense that is not contradicted when
examined in the context of the record as a whole.
We are bound by facts supported by the record and
may reverse only if the legal conclusions reached by
the court were erroneous. Commonwealth v.
O’Black, 897 A.2d 1234, 1240 (Pa.Super. 2006),
citing Commonwealth v. Scott, 878 A.2d 874, 877
(Pa.Super. 2005), appeal denied, 586 Pa. 749, 892
A.2d 823 (2005).
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Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006). “It is
within the sole province of the suppression court judge to weigh the
credibility of the witnesses, and he or she is entitled to believe all, part, or
none of the evidence presented.” Commonwealth v. Snell, 811 A.2d 581,
584 (Pa.Super. 2002), appeal denied, 820 A.2d 162 (Pa. 2003) (citation
omitted).
Initially, appellant contends that the trial court erred when it denied
the suppression motion because there was not probable cause to arrest him.
There exists [sic] three levels of interactions
between citizens and police officers under our Fourth
Amendment jurisprudence: 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 respond.
The second, an ‘investigative detention’ must be
supported by reasonable suspicion; it subjects a
suspect to a stop and period of detention, but does
not involve such coercive conditions as to constitute
the functional equivalent of arrest. Finally, an arrest
or ‘custodial detention’ must be supported by
probable cause. An investigative detention
constitutes a seizure of the person and must be
supported by reasonable suspicion that those
detained are engaged in criminal activity.
Commonwealth v. Carter, 779 A.2d 591, 593 (Pa.Super. 2001), quoting
Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa.Super. 2000).
Probable cause exists if the facts and circumstances
within the knowledge of the police officer at the time
of the arrest are sufficient to justify a person of
reasonable caution in believing the suspect has
committed or is committing a crime. In determining
whether probable cause existed in a particular
situation, a court will look not just at one or two
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individual factors, but will consider the “totality of
the circumstances” as they appeared to the arresting
officer:
When we examine a particular situation
to determine if probable cause exists, we
consider all the factors and their total
effect, and do not concentrate on each
individual element. . . . We also focus on
the circumstances as seen through the
eyes of the trained officer, and do not
view the situation as an average citizen
might. . . . Finally, we must remember
that in dealing with questions of probable
cause, we are not dealing with
certainties. We are dealing with the
factual and practical considerations of
everyday life on which reasonable and
prudent [persons] act.
Commonwealth v. Simmons, 295 Pa.Super. 72,
83, 440 A.2d 1228, 1234 (1982), quoting
Commonwealth v. Kazior, 269 Pa.Super. 518,
522, 410 A.2d 822, 824 (1979). It is only the
probability, and not a prima facie showing, of
criminal activity that is the standard of probable
cause for a warrantless arrest. Probable cause exists
when criminality is one reasonable inference; it need
not be the only, or even the most likely, inference.
Commonwealth v. Quiles, 619 A.2d 291, 298 (1993) (en banc) (other
citations omitted).
In Commonwealth v. Thompson, 985 A.2d 928, 935 (Pa. 2009), the
Pennsylvania Supreme Court held that a police officer’s experience may be
regarded as a relevant factor in determining probable cause as long as the
officer establishes a nexus between his experience and the search, arrest, or
seizure of evidence.
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The parties agree that appellant was arrested. Therefore, the inquiry
is whether the Police Department had probable cause to arrest him. The
trial court specifically found that Officer Soto observed two instances where
individuals exited their vehicles, approached appellant on foot, and gave him
money in exchange for a bag which appellant handed to each individual in a
pinching motion. Officer Soto also observed appellant get into a Chevy
Malibu, open the overhead light fixture, and place a clear plastic bag
containing some sort of objects into the light fixture. Appellant then exited
the vehicle and stood outside a bar. The trial court also noted Officer Soto’s
eight years of experience on the police force including six years in the
Narcotics Field Unit and his observation of “thousands” of drug transactions
to determine that the police department had probable cause to arrest
appellant.
Appellant asserts that the facts elicited by the Commonwealth at the
hearing on the motion to suppress failed to rise to the level necessary to
establish probable cause because there was no evidence of a second party to
the transaction who possessed drugs, no evidence that the neighborhood,
house, or person was targeted as a result of suspected drug activity, and
there was no surreptitious activity. Further, there were not multiple,
complex, suspicious transactions; no drugs or containers commonly used to
hold drugs were found; and no complaints or tips about the area or the
appellant as a possible drug dealer.
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While those factors were significant in other cases, this court must
review the facts as found here. A police officer with a wealth of experience
in observing street drug transactions saw two individuals in a short period of
time approach the appellant and give him money in exchange for whatever
was contained in the small bags. Though Officer Soto could not know the
precise contents of the bags, based on his experience, he believed that they
contained drugs. Further, when he saw appellant place items in the light
fixture in appellant’s car, Officer Soto believed the items were drugs because
he knew of approximately five other times when drugs were found in a
compartment in a vehicle after a search warrant was issued. (Notes of
testimony, 7/2/13 at 15-17.) This court is satisfied that Officer Soto had
probable cause to order the arrest of appellant. See Thompson (an
experienced police officer had probable cause when he saw a single hand-to-
hand exchange which was in an area he knew to have frequent heroin
sales). See also Commonwealth v. Dixon, 997 A.2d 368 (Pa.Super.
2010) (officer had probable cause to arrest following his observance of a
hand-to-hand exchange on a public street at midday where officer had made
forty drug arrests in the immediate vicinity). Although there was no
testimony that the transactions occurred in a high-traffic drug area, Officer
Soto’s detailed testimony coupled with his extensive experience supported a
finding of probable cause.
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Appellant next contends that the affidavit of probable cause for the
search warrant to search the Chevy Malibu was insufficient because the only
additional fact beyond Officer Soto’s observations was the fact that a K-9
dog hit on the car.
Pa.R.Crim.P. 203(b) provides that “[n]o search warrant will issue but
upon probable cause supported by one or more affidavits sworn to before
the issuing authority.” According to Pa.R.Crim.P. 206, the affidavits must
[S]et forth specifically the facts and circumstances
which form the basis for the affiant’s conclusion that
there is probable cause to believe that the items or
property identified are evidence or the fruit of a
crime, or are contraband, or are expected to be
otherwise unlawfully possessed or subject to seizure
and that these items or property are or are expected
to be located on the particular person or at the
particular place described.
Pa.R.Crim.P. 206.
With respect to the role of the issuing magistrate, this court has
stated:
The task of the issuing magistrate is to
make a practical, commonsense decision
whether, given all the circumstances set
forth in the affidavit before him,
including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay
information, there is a fair probability
that contraband or evidence of a crime
will be found in a particular place. And
the duty of a reviewing court is simply to
ensure that the magistrate had a
‘substantial basis’ for concluding that
probable cause existed.
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[Commonwealth v. Coleman, 769 A.2d 462
(Pa.Super. 2001)]. A magistrate’s finding of
probable cause “must be based on facts described
within the four corners of the affidavit[.]”
Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d
141, 143 (1981), and “our scope of review of a
suppression court’s ruling [on a magistrate’s finding
of probable cause] is confined primarily to questions
of law.” Id. (citing Commonwealth v. Sharp, 453
Pa.Super. 349, 683 A.2d 1219, 1221 (1996).
Commonwealth v. Smith, 784 A.2d 182, 185 (Pa.Super. 2001).
“Probable cause to issue a search warrant has been defined as those
facts reasonably necessary to show (1) that the items sought are connected
with criminal activity, and (2) that the items will be found in the place to be
searched.” Commonwealth v. Kanouff, 462 A.2d 251, 252 (Pa.Super.
1988), quoting Commonwealth v. Council, 421 A.2d 623, 627 (Pa. 1980).
“The facts stated in an affidavit will support a search warrant only when they
would persuade a reasonable person that there is probable cause for a
search; mere suspicion or conjecture is insufficient.” Id.
Here, Officer Jeffcoat’s affidavit of probable cause provided a
description of what Officer Soto observed, that appellant was taken into
police custody, and that police recovered $972 from appellant.
Officer Jeffcoat also stated, “At approx. 9:15 p.m. Officer’s [sic] called a K-9
Unit in to the white Chevy Malibu. K-10 Unit Officer Kenneth Kustra #2688
and his dog Yuri #567 responded. Yuri hit on the driver’s side door.”
(Continuation of Probal [sic] Cause for Search & Seizure Warrant #166803,
October 13, 2012, (“Affidavit”) at 1.) Officer Jeffcoat also stated that she
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believed the Chevy Malibu was used to store illegal narcotics for sales. (Id.
at 1.)
Appellant argues that the Affidavit failed to establish probable cause
because it mostly relied on Officer Soto’s observations, which appellant
believes failed to establish probable cause to justify the arrest of appellant.
This court has already determined that Officer Soto’s observations justified
the arrest of appellant, so this argument has no merit. He also argues that
because the arrest was illegal, everything that flowed from there, including
the warrant and the search of the car, was illegal. As we have determined
that the arrest was supported by probable cause, this argument, too, has no
merit.
Appellant also contends that the use of the K-9 dog did not establish
probable cause because the affidavit did not state that the dog was a
certified drug detecting dog.
In Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987), the
Pennsylvania Supreme Court held that an affidavit referencing a K-9 drug
sniffing dog was sufficient to establish probable cause where the affidavit
contained enough information to indicate that the dog that was used to
conduct a sniff search of a storage facility where illegal narcotics were
discovered was not an ordinary police dog who might “alert” to anything but
was trained to indicate the presence of narcotics.
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Appellant is correct that the affidavit did not contain any information
about the training of the dog, Yuri. Based on Johnson, the information
concerning the sniff of the front door of the Chevy Malibu did not support the
finding of probable cause to issue the warrant.
However, even without this information, a reviewing court must
determine whether, based on other information contained in the affidavit,
there was probable cause to issue the warrant. Commonwealth v. West,
937 A.2d 516, 529-530 (Pa.Super. 2007).
Here, the other information contained in the affidavit regarding
Officer Soto’s observations support the finding of probable cause: his
observation of two suspected drug transactions and his observation of
appellant placing a clear plastic bag, which contained small unknown
objects, into the interior light fixture of the car. This information served as
probable cause. This court concludes that the trial court did not err when it
denied the motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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