J-S29022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW J. SWEENEY
Appellant No. 1353 WDA 2014
Appeal from the Judgment of Sentence June 12, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016492-2013
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED: JUNE 05, 2015
Appellant, Andrew J. Sweeney, appeals from the June 12, 2014
judgment of sentence of 18 months’ probation imposed after the trial court
found Appellant guilty of two counts of possession of a controlled
substance.1 After careful review, we affirm.
The trial court summarized the factual background of this case in the
following manner.
[…] Officer [James] Goss of the City of
McKeesport Police Department was working the night
shift on the evening of November 16, 2013. While
on duty, he received a call from Allegheny County
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16).
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Dispatch for service at Beemer’s [B]ar for suspected
narcotics activity. Upon arrival at Beemer’s Bar, the
police officers spoke to the bar manager who made a
statement regarding her observations about
[Appellant]. The bar manager was the known and
identified caller to 911. Thereafter, she pointed to
[Appellant] and indicated “he’s the one.” Officer
Goss and his partner then approached [Appellant]
and asked him to step outside so they could speak to
him. Officer Goss testified that he declined to
question [Appellant] inside the bar due to officer
safety concerns.
Once Officer Goss, his partner, and [Appellant]
were in the foyer of the bar, he explained why they
were there and asked [Appellant] for permission to
search his person. [Appellant] gave his consent, and
Officer Goss found cocaine in his right front watch
pocket. [Appellant] was thereafter placed under
arrest.
At trial, the parties stipulated to the crime lab
results, which were positive for heroin and cocaine.
The parties also stipulated to the Affidavit of
Probable Cause[.]
Trial Court Opinion, 12/23/14, at 1-2 (citations omitted).2
On January 16, 2014, the Commonwealth filed an information charging
Appellant with the aforementioned offenses as well as possession of drug
paraphernalia.3 On April 3, 2014, Appellant filed a motion to suppress
evidence on the basis that Officer Goss lacked reasonable suspicion to
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2
The trial court’s Rule 1925(a) opinion does not contain pagination. For
ease of reference, we have assigned each page a corresponding page
number.
3
35 P.S. § 780-113(a)(32).
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search or seize Appellant. Appellant’s Motion to Suppress, 4/3/14, at 3-4.4
The trial court held a hearing on Appellant’s motion on May 29, 2014, and on
June 10, 2014, the trial court denied said motion. On June 12, 2014,
Appellant proceeded to a stipulated bench trial, and the trial court found
Appellant guilty of two counts of possession of a controlled substance. N.T.,
6/12/14, at 15. The trial court found Appellant not guilty of possession of
drug paraphernalia. Id. at 16. At that time, the trial court sentenced
Appellant to 18 months’ probation on the first count, possession of heroin,
and imposed no further penalty on count two, possession of cocaine. Id. at
19. No post-sentence motions were filed.
On July 9, 2014, Appellant filed a pro se notice of appeal.5 On August
11, 2014, the trial court appointed the Public Defender’s Office to represent
____________________________________________
4
Appellant’s motion to suppress does not contain pagination. We have
assigned corresponding page numbers for ease of reference.
5
Appellant’s notice of appeal is docketed on July 14, 2014. However,
Appellant was incarcerated during this time, and the certified record contains
a copy of the envelope Appellant used for mailing his notice of appeal, which
shows a postmark of July 9, 2014. Under the prisoner mailbox rule, “a pro
se prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d 715 (Pa. 2012).
As such, we treat July 9, 2014 as the filing date.
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Appellant, and appointed counsel filed an amended notice of appeal on
August 20, 2014.6
On appeal, Appellant raises the following issues for our review.
I. [Whether] the trial court erred in denying
[Appellant’s] motion to suppress where police lacked
reasonable suspicion to believe [Appellant] was
engaged in criminal conduct at the time they stopped
him[?]
[II.] [Whether] [Appellant’s] consent to the police
search of his person was not voluntary since his
consent was provided in response to the coercive
and illegal police conduct[?]
Appellant’s Brief at 4.7
When reviewing a challenge to a trial court’s denial of a suppression
motion, we adhere to the following well-established standard of review.
We may consider only the Commonwealth’s evidence
and so much of the evidence for the defense as
remains uncontradicted when read in the context of
the record as a whole. Where the record supports
the factual findings of the trial court, we are bound
by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the
suppression court’s conclusions of law.
____________________________________________
6
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
7
Appellant’s brief enumerates one issue; however, he raises two distinct
questions. For ease of discussion and review, we have amended his issues
to reflect the two arguments.
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Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).
Further, when evaluating a ruling on a pre-trial suppression motion, our
review is limited to the evidence presented at the suppression hearing.
Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014).
Appellant first argues that “[t]he police violated [his] constitutional
rights to be free from unreasonable searches and seizures when they
stopped him without the requisite reasonable suspicion to believe he was
engaged in criminal activity.” Appellant’s Brief at 10. Appellant asserts,
“the seizure was unconstitutional as police did not independently observe
any actions indicative of criminal activity[,]” and “the only information police
had before they seized [Appellant] was the information from the unidentified
bartender that [Appellant] possessed illegal drugs.” Id. at 10, 16. The
Commonwealth counters Appellant’s argument by averring, “[u]nder the
totality of the circumstances, police had reasonable suspicion that
[A]ppellant was engaging in criminal activity and an investigative detention
of [A]ppellant was justified.” Commonwealth’s Brief at 5.
An encounter between a police officer and a citizen falls into one of
three categories.
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 a 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
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equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Fleet, --- A.3d ---, 2015 WL 1845917, at *4 (Pa.
Super. 2015). We agree with Appellant and Commonwealth that the
necessary level of suspicion required to support the encounter in this case is
reasonable suspicion. Appellant’s Brief at 10; Commonwealth’s Brief at 5;
see Ranson, supra at 77 (observing a “stop” occurs when police officers
command a citizen to stop). Therefore, we proceed to our determination as
to the constitutionality of the detention.
In assessing whether an investigative detention is constitutional, the
following standard informs our decision.
A police officer may detain an individual in order to
conduct an investigation if that officer reasonably
suspects that the individual is engaging in criminal
conduct. This standard, less stringent than probable
cause, is commonly known as reasonable suspicion.
In order to determine whether the police officer had
reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, we must give due weight to the
specific reasonable inferences the police officer is
entitled to draw from the facts in light of his
experience. Also, the totality of the circumstances
test does not limit our inquiry to an examination of
only those facts that clearly indicate criminal
conduct. Rather, even a combination of innocent
facts, when taken together, may warrant further
investigation by the police officer.
Ranson, supra, citing Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.
Super. 2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010).
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Our Supreme Court has provided the following guidance regarding
information provided to police.
An anonymous tip, corroborated by independent
police investigation, may exhibit sufficient indicia of
reliability to supply reasonable suspicion for an
investigatory stop. However, we have recognized a
known informant’s tip may carry sufficient “indicia of
reliability” to justify an investigative detention
despite the fact that it may prove insufficient to
support an arrest or search warrant.
Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). The Court also
observed, “[i]f the information from an anonymous informant is false, no
action against the informant is possible; however, providing false
information will have consequences for a known informant … distinguishing
the presumptive quality of information, and tipping the scales toward
credibility, not away from it.” Id. at 478.
Officer Goss testified that, at the time of the suppression hearing, he
was employed by the City of McKeesport Police Department as a law
enforcement official for approximately nine years and had received
additional training in drug identification and attended numerous firearms and
other classes. N.T., 5/29/14, at 5. He testified at the suppression hearing
as to his actions responding to the 911 call as follows.
[The Commonwealth]:
Q. Officer Goss, what did you notice when you went
into [Beemer’s B]ar?
[Officer Goss]:
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A. The bar manager, who made the 911 call, pointed
to [Appellant].
Q. Okay. And based off the information you had on
the 911 call, did the description fit anybody you saw
in the bar?
A. Yes.
…
[The trial court]:
All right. Let the record reflect that Officer
James Goss has identified [Appellant].
[The Commonwealth]:
Q. Did you have a conversation with the bar
manager when you walked in?
A. A brief one, yes. As I walked -- myself and
Officer Matthews walked in through the foyer into
the main entrance of the bar. The bar manager
observed us because we were in full uniform and
pointed to [Appellant], said, “[h]e’s the one.”
Id. at 8-9. He later testified on cross-examination that he entered Beemer’s
Bar “within ten minutes” from when the call was dispatched. Id. at 11.
Under the totality of the circumstances, in light of Officer Goss’
training and experience, we conclude there was reasonable suspicion to
believe Appellant was engaged in criminal conduct. See Ranson, supra.
Officer Goss responded to the 911 dispatch of illegal drug activity within ten
minutes of its receipt, he spoke with the bar manager who made the call,
Appellant fit the description of that given on the 911 call, and the bar
manager positively identified Appellant as the subject of her 911 call.
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Appellant argues that the “information provided by the bartender in this case
must be regarded as an anonymous tip.” Appellant’s Brief at 16. However,
upon response to the 911 call, Officer Goss identified the informant as the
bar manager, and she reaffirmed the information in her call by identifying
Appellant. Therefore, the presumptive quality of the information is credible,
and we conclude it was sufficiently reliable to support an investigative
detention. See Brown, supra at 477-478; see also Commonwealth v.
Williams, 980 A.2d 667, 671-672 (Pa. Super. 2009) (concluding that a tip
made to a police officer in person where officer had “an opportunity to
observe the witness’ demeanor and assess his credibility in light of his past
experience with investigating crimes” affords the tip more weight than “a
mere anonymous phone call[]”), appeal denied, 990 A.2d 730 (Pa. 2010);
Ranson, supra at 78-79 (distinguishing cases where general and vague
anonymous tips were deemed unconstitutional to support reasonable
suspicion where veteran officer “had an opportunity to assess: (1) the
demeanor of the tipster; (2) the basis of the tipster’s knowledge; and, (3)
the tipster’s present ability to perceive Appellant[]”). Accordingly,
Appellant’s argument is meritless.
Appellant also argues his consent to search his person was not
voluntary. Appellant’s Brief at 18-19. We conclude this argument is waived.
At the suppression hearing, Officer Goss testified that he “asked permission
to search [Appellant,]” and “[Appellant] gave me permission.” N.T.,
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5/29/14, at 11. At no point during the suppression hearing did Appellant
challenge the voluntariness of his consent to search or argue it was coerced.
See generally id. at 3-24. Therefore, the challenge is waived. See
Pa.R.A.P. 302 (issues not raised in the lower court are waived and cannot be
raised for the first time on appeal). Further, Appellant never identified the
voluntariness of his consent to the search in his Rule 1925(b) statement as a
claim of error; as such, any such challenge is waived on appeal. See
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (holding Rule 1925(b)
is a bright-line rule, and any issue not included in the 1925(b) statement is
waived on appeal); accord Pa.R.A.P. 1925(b)(4)(vii).
Based on the foregoing, we conclude Appellant is not entitled to relief,
and the trial court properly denied his motion to suppress. Accordingly, we
affirm the June 12, 2014 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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Com. v. Sweeney, A.
Combined Opinion