Com. v. Benitez, J.

J-A15017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOSE BENITEZ :
:
Appellee : No. 1462 EDA 2019
Appeal from the Order Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005816-2017
BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 15, 2020
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, granting the
suppression motion of Appellee, Jose Benitez.1 We reverse and remand for
further proceedings.
The relevant facts and procedural history of this case are as follows. On
May 22, 2017, Sergeant Brian Myers of the Philadelphia Police Department
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the suppression order substantially handicapped or terminated
the prosecution of the Commonwealth’s case. Accordingly, this appeal is
properly before us for review. See Commonwealth v. Cosnek, 575 Pa. 411,
421, 836 A.2d 871, 877 (2003) (stating Rule 311(d) applies to pretrial ruling
that results in suppression, preclusion or exclusion of Commonwealth’s
evidence).
J-A15017-20
conducted surveillance at 3329 Bleigh Avenue, responding to complaints
about several Hispanic men entering and exiting the property while carrying
packages. (See N.T. Hearing, 4/29/19, at 28). Sergeant Myers observed two
Hispanic men exit the property and enter a white Acura parked out front. (Id.
at 32). The sergeant followed the Acura to 7347 Belden Street, where one of
the occupants entered the house carrying a box of diapers. (Id. at 33). The
same man left the house approximately five minutes later and reentered the
Acura. (Id.) Sergeant Myers followed the Acura back to 3329 Bleigh Avenue,
where the two men parked and went back inside the house. (Id. at 33-34).
Another unidentified male arrived at the house and went inside for
approximately fifteen minutes. (Id. at 34). Then, the three men exited the
house together, entered the Acura, drove to Crispin Street, and pulled over.
(Id.) A white Nissan pulled up behind the Acura. (Id.) Sergeant Myers
recognized the Nissan from a prior investigation. (Id. at 38). The driver of
the Acura exited his vehicle, entered the Nissan, remained there for three to
five minutes, returned to the Acura, and drove off. (Id. at 35).
Sergeant Myers followed the Nissan until it parked at the intersection of
Stanwood and Eastwood Streets. (Id.) A short time later, a white Jeep
Cherokee arrived and parked in front of the Nissan. (Id.) The driver of the
Nissan exited his vehicle and entered the front passenger seat of the Jeep.
(Id. at 36). After five minutes, the Nissan driver exited the Jeep, returned to
the Nissan, retrieved an object, and gave it to the Jeep driver. (Id. at 37).
-2-
J-A15017-20
Following this exchange, both vehicles left the scene and Sergeant Myers
concluded his surveillance. (Id.) Significantly, Sergeant Myers did not
observe Appellee or his co-defendant, Yasser Almanzar,2 during the May 22,
2017 surveillance.
On May 24, 2017, Sergeant Myers returned to 3329 Bleigh Avenue to
conduct additional surveillance. (Id. at 43). Sergeant Myers received
assistance from Officer Edward Slater, who was conducting surveillance of the
white Jeep at 2204 Stanwood Street. (Id.) Officer Slater observed Appellee
exit the property and walk to the Jeep. (Id. at 44). At the same time, Mr.
Almanzar arrived in a white Chevrolet Malibu, which he “backed up to the
white Jeep, so the trunk of the Chevy was facing the trunk of the” Jeep. (Id.)
Appellee retrieved a large, green bag from the trunk of the Jeep and
transferred it into the trunk of the Chevrolet. (Id. 44-45). Mr. Almanzar
drove off in the Chevrolet, and Appellee subsequently left in the Jeep. (Id. at
49, 59).
Officer Slater followed the Chevrolet, and Sergeant Myers joined the
pursuit. (Id.) Once the Chevrolet pulled over on the 3000 block of Gilford
Street, Sergeant Myers decided to stop the vehicle for further investigation.
(Id. at 50). A search of the trunk revealed 1,150 bundles of heroin inside the
green bag. (Id. at 53). Sergeant Myers contacted a back-up officer and
____________________________________________
2 Mr. Almanzar is the appellee in a related appeal, docketed at 1463 EDA 2019.
-3-
J-A15017-20
ordered him to conduct a stop of Appellee in the Jeep. (Id. at 59). The back-
up officer stopped the Jeep, but did not discover any drugs. (Id. at 59). An
additional search of the residence at 2204 Stanwood Street yielded cellphones
and cash, but no drugs or drug paraphernalia. (Id. at 18).
The Commonwealth charged Appellee and Mr. Almanzar with possession
of a controlled substance, possession of a controlled substance with intent to
deliver, possession of drug paraphernalia, and criminal conspiracy.3 On July
26, 2017, Mr. Almanzar filed an omnibus pretrial motion to suppress all
evidence obtained as a result of the warrantless vehicle search. Appellee filed
his own suppression motion on September 14, 2018. On April 29, 2019, the
court conducted a joint suppression hearing.
At the hearing, Sergeant Myers testified that he had been involved with
“[o]ver a thousand” narcotics investigations in the past eighteen years. (N.T.
Hearing at 23). Sergeant Myers explained that the property subject to the
initial complaints, 3329 Bleigh Avenue, had iron bars covering the windows
and doors on the first floor. (Id. at 29). Sergeant Myers claimed he had seen
a similar setup “one other time, probably a year before” in a previous narcotics
investigation in the same neighborhood. (Id. at 30).
Ultimately, Sergeant Myers provided the reasons for his decision to stop
Mr. Almanzar in the Chevrolet. Sergeant Myers “believed a large amount of
____________________________________________
3 35 P.S. § 780-113(a)(16), (30), (32), and 18 Pa.C.S.A. § 903, respectively.
-4-
J-A15017-20
narcotics were in the trunk of” the Chevrolet. (Id. at 50). Sergeant Myers
based his decision on the following:
Based on the observations that we [saw] on Stanwood
Street on the 22nd [of May] and quick meetings between
different people in different vehicles, leaving the area, the
bag being transferred from the Jeep to the Chevy, my past
investigations, being familiar with the cars being utilized,
again, the Chevy[4] and Nissan.
(Id. at 51).
Officer Slater testified that he had served as a police officer for twelve
years with two-and-a-half years of narcotics work. (Id. at 73). Officer Slater
had conducted approximately ten narcotics investigations in the neighborhood
at issue, “usually pertaining to bag houses of heroin.” (Id. at 72). Although
Officer Slater observed Appellee retrieve the bag from the trunk of the Jeep
and transfer it to the Chevrolet, he did not observe any drugs or the exchange
of money. (Id. at 86-89).
Mr. Almanzar also testified, stating he had received permission to drive
the Chevrolet from a man named “Jose.” (Id. at 92). Although Jose was “not
____________________________________________
4 Earlier in his direct examination, Sergeant Myers stated that he had seen the
same Chevrolet during a prior investigation. (N.T. Hearing at 47). Defense
counsel objected, the court sustained the objection, the parties discussed the
matter further, and defense counsel withdrew his objection. (Id. at 47-48).
Following the withdrawal of the objection, the prosecutor did not immediately
resume her line of questioning concerning Sergeant Myers’ prior encounter
with the Chevrolet. (Id. at 49). When Sergeant Myers subsequently
reiterated that his prior encounter with the Chevrolet contributed to his
decision to stop the vehicle on this occasion, defense counsel did not object
to the testimony. (Id. at 51).
-5-
J-A15017-20
really a close friend,” Mr. Almanzar asked to borrow the Chevrolet after seeing
Jose “one day at the barbershop.” (Id. at 92, 94). Mr. Almanzar told Jose he
“needed to pick up baby clothes,” and Jose agreed that he could use the car
for the day. (Id. at 98).
Immediately following the hearing, the court found “the evidence to be
insufficient to meet probable cause for stopping” the Chevrolet, and it
suppressed the drugs obtained as a result of the vehicle search. (Id. at 119).
The Commonwealth timely filed a notice of appeal on May 21, 2019. On May
23, 2019, the court ordered the Commonwealth to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The Commonwealth
timely filed its Rule 1925(b) statement on June 12, 2019.
The Commonwealth raises three issues on appeal:
Did the suppression court err in concluding that the search
of a vehicle violated [Appellee’s] Fourth Amendment rights
despite his failure to establish a reasonable expectation of
privacy and where, in any event, there was probable cause
to search?
Did the suppression court err in precluding the
Commonwealth from entering evidence of the officers’ prior
observation and experiences that was directly relevant to
the totality of the circumstances supporting probable cause?
Did the suppression court err in failing to consider the
officer’s extensive experience where a nexus existed
between the experience and the observations made in this
case?
(Commonwealth’s Brief at 4).
In its first issue, the Commonwealth argues the suppression court “did
-6-
J-A15017-20
not hold [Appellee] to his threshold burden to prove that he had a reasonable
expectation of privacy in the searched vehicle.” (Id. at 14). The
Commonwealth insists Appellee did not own the vehicle, and he “was not even
present in it at the time of the search.” (Id.) The Commonwealth concludes
Appellee did not have a reasonable expectation of privacy in the vehicle or its
contents, and this Court must reverse the suppression order on this basis. We
agree.
When the Commonwealth appeals from a suppression order, the
relevant scope and standard of review are well-settled:
[We] consider only the evidence from the defendant’s
witnesses together with the evidence of the prosecution
that, when read in the context of the entire record, remains
uncontradicted. The suppression court’s findings of fact
bind an appellate court if the record supports those findings.
The suppression court’s conclusions of law, however, are not
binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa.Super. 2016), appeal
denied, 639 Pa. 157, 159 A.3d 933 (2016) (internal citations and quotation
marks omitted). “It is within the 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.” Commonwealth v.
-7-
J-A15017-20
Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003), appeal denied, 577 Pa. 701,
847 A.2d 58 (2004) (internal citations omitted).
“The concept of standing in a criminal search and seizure context
empowers a defendant to assert a constitutional violation and thus seek to
exclude or suppress the government’s evidence pursuant to the exclusionary
rules under the Fourth Amendment of the United States Constitution or Article
1, Section 8 of the Pennsylvania Constitution.” Commonwealth v. Powell,
994 A.2d 1096, 1103 (Pa.Super. 2010), appeal denied, 608 Pa. 665, 13 A.3d
477 (2010) (quoting Commonwealth v. Hawkins, 553 Pa. 76, 80, 718 A.2d
265, 266 (1998)). “A defendant moving to suppress evidence has the
preliminary burden of establishing standing and a legitimate expectation of
privacy.” Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.Super.
2011) (quoting Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super.
2009) (en banc)).
Standing requires a defendant to demonstrate one of the
following: (1) his presence on the premises at the time of
the search and seizure; (2) a possessory interest in the
evidence improperly seized; (3) that the offense charged
includes as an essential element[,] the element of
possession; or (4) a proprietary or possessory interest in
the searched premises. A defendant must separately
establish a legitimate expectation of privacy in the area
searched or thing seized. Whether [a] defendant has a
legitimate expectation of privacy is a component of the
merits analysis of the suppression motion. The
determination whether [a] defendant has met this burden is
made upon evaluation of the evidence presented by the
Commonwealth and the defendant.
Powell, supra at 1103-04 (quoting Commonwealth v. Burton, 973 A.2d
-8-
J-A15017-20
428, 435 (Pa.Super. 2009) (en banc)) (internal citations omitted).
Regarding challenges to the search of an automobile, we note:
[G]enerally under Pennsylvania law, a defendant charged
with a possessory offense has automatic standing to
challenge a search. However, in order to prevail, the
defendant, as a preliminary matter, must show that he had
a privacy interest in the area searched.
An expectation of privacy is present when the individual, by
his conduct, exhibits an actual (subjective) expectation of
privacy and that the subjective expectation is one that
society is prepared to recognize as reasonable. The
constitutional legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual
asserting the right but on whether the expectation is
reasonable in light of all the surrounding circumstances.
Burton, supra at 435 (internal quotation marks omitted). See also
Commonwealth v. Brown, 64 A.3d 1101, 1106-07 (Pa.Super. 2013), appeal
denied, 622 Pa. 747, 79 A.3d 1096 (2013) (holding defendant failed to
establish reasonable expectation of privacy in vehicle where he offered no
evidence of permission to drive from vehicle owner).
Instantly, Mr. Almanzar testified that the owner of the Chevrolet gave
him permission to use the vehicle. Appellee, however, did not present any
evidence demonstrating his connection to the vehicle. Likewise, Appellee did
not even occupy the Chevrolet at the time of the search. Absent more,
Appellee had no demonstrable, reasonably cognizable expectation of privacy
in a vehicle he did not own and for which he could show no authority to occupy
or operate. See Burton, supra; Powell, supra. Thus, the court should have
denied Appellee’s suppression motion concerning the contraband recovered
-9-
J-A15017-20
from the Chevrolet.5 Accordingly, we reverse the order granting Appellee’s
suppression motion and remand for further proceedings.6
Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
____________________________________________
5 In the appeal at 1463 EDA 2019, we determined the court properly granted
Mr. Almanzar’s suppression motion. Although it may appear incongruous not
to reach the same result for Appellee, we reiterate that a defendant cannot
vicariously assert the privacy rights of others. See Powell, supra at 1107-
08 (explaining defendant cannot prevail upon suppression motion unless he
demonstrates that challenged police conduct violated his own personal privacy
interests; appellee did not establish violation of personal privacy rights, even
though court properly granted co-appellee’s suppression motion).
6 Due to our disposition, we need not address the Commonwealth’s remaining
issues.
- 10 -