Com. v. Bantum, B.

J-S20021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

BRIAN BANTUM,

Appellant No. 1123 WDA 2014

Appeal from the Judgment of Sentence Entered June 10, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000331-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 14, 2015

Appellant, Brian Bantum, appeals from the judgment of sentence

entered following his convictions of possession of a controlled substance and

public drunkenness. We affirm.

We summarize the history of this case as follows. In the early

morning hours of November 4, 2012, after Altoona Police were dispatched to

a neighborhood bar because of a disturbance, the police noticed Appellant

standing in the shadows next to a church less than a block away. A police

officer approached Appellant, noticed several signs of intoxication, placed

Appellant under arrest, searched Appellant, and discovered a controlled

substance (Alprazolam) in Appellant’s pocket. Appellant was charged with

possession of a controlled substance and public drunkenness.
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On July 26, 2013, Appellant filed a motion to dismiss/suppress, and on

October 11, 2013, the trial court held a hearing on the motion. The trial

court denied the motion on January 14, 2014. On March 25, 2014, a jury

convicted Appellant of possession of a controlled substance, and the trial

judge convicted Appellant of the summary offense of public drunkenness.

On June 10, 2014, the trial court sentenced Appellant to serve a term of

incarceration of three to twelve months on the possession-of-a-controlled-

substance conviction and to serve a consecutive term of probation of ninety

days for the summary offense of public drunkenness. This timely appeal

followed.

Appellant presents the following issues for our review:

I) Whether Officer Venios possessed “reasonable suspicion”
to initiate an investigative detention of Appellant?

II) If the Court concludes that the officer had reasonable
suspicion to detain Appellant, did he possess probable
cause to arrest him for Public Drunkenness?

III) Whether the Trial Court impermissibly shifted the Burden
of Proof to Appellant in response to the second jury
question, by instructing the jury that they should find him
guilty if they did not believe his testimony?

Appellant’s Brief at 10.

Appellant first argues that the trial court erred in failing to grant the

motion to suppress. Specifically, Appellant contends that the police officer

lacked reasonable suspicion to conduct an investigative detention of

Appellant.

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The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. An appellate court

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. Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d

75 (Pa. 2004)). Where the record supports the factual findings of the trial

court, the appellate court is bound by those facts and may reverse only if

the legal conclusions drawn therefrom are in error. Id. However, it is also

well settled that the appellate court is not bound by the suppression court’s

conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455

(Pa. 2003)).

With respect to factual findings, we are mindful that it is
the sole province of the suppression court to weigh the credibility
of the witnesses. Further, the suppression court judge is entitled
to believe all, part or none of the evidence presented. However,
where the factual determinations made by the suppression court
are not supported by the evidence, we may reject those findings.
Only factual findings which are supported by the record are
binding upon this [C]ourt.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted). In addition, questions of the admission and exclusion of

evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion. Commonwealth v.

Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

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Moreover, we are aware that Pennsylvania Rule of Criminal Procedure

581, which addresses the suppression of evidence, provides in relevant part

as follows:

(H) The Commonwealth shall have the burden . . . of
establishing that the challenged evidence was not obtained in
violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures, thereby
ensuring the “right of each individual to be let alone.”
Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

To secure the right of citizens to be free from intrusions by police,

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as

those interactions become more intrusive. Commonwealth v. Beasley,

761 A.2d 621, 624 (Pa. Super. 2000).

It is undisputed that:

[s]tate case law recognizes three categories of interaction
between police officers and citizens, which include: (1) a mere
encounter, or request for information, which need not be
supported by any level of suspicion, but which carries no official
compulsion to stop or to respond; (2) an investigative detention,
which must be supported by reasonable suspicion as it subjects
a suspect to a stop and a period of detention, but does not
involve such coercive conditions as to constitute the functional
equivalent of an arrest; and (3) arrest or custodial detention,
which must be supported by probable cause.

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Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc).

If the police action becomes too intrusive, a mere encounter may

escalate into an investigatory stop or a seizure. Commonwealth v.

Boswell, 721 A.2d 336, 340 (Pa. 1998). “Because the level of intrusion into

a person’s liberty may change during the course of the encounter, we must

carefully scrutinize the record for any evidence of such changes.”

Commonwealth v. Blair, 860 A.2d 567, 572 (Pa. Super. 2004) (citing

Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000)). In determining

whether a mere encounter has risen to the level of an investigative

detention, our inquiry focuses on whether the individual in question has

been seized.

To guide the crucial inquiry as to whether or not a seizure has
been effected, the United States Supreme Court has devised an
objective test entailing a determination of whether, in the view
of all surrounding circumstances, a reasonable person would
believe that he was free to leave. In evaluating the
circumstances, the focus is directed toward whether, by means
of physical force or show of authority, the citizen-subject’s
movement has in some way been restrained. In making this
determination, courts must apply the totality-of-the-
circumstances approach, with no single factor dictating the
ultimate conclusion as to whether a seizure has occurred.

Strickler, 757 A.2d at 889-890 (citations omitted).

We have long considered the following factors in analyzing the

conditions surrounding the escalation of police and citizen interactions:

Circumstances to consider include, but are not limited to, the
following: the number of officers present during the interaction;

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whether the officer informs the citizen they are suspected of
criminal activity; the officer’s demeanor and tone of voice; the
location and timing of the interaction; the visible presence of
weapons on the officer; and the questions asked.

Beasley, 761 A.2d at 624-625 (quoting Boswell, 721 A.2d at 340).

Otherwise inoffensive contact between a member of the public and the police

cannot, as a matter of law, amount to a seizure of that person. Id.

To effectuate an investigative detention, the officers are required to

have reasonable suspicion that unlawful activity was in progress. Our

Supreme Court has explained that, in order to demonstrate reasonable

suspicion, the police must be able to point to specific facts and reasonable

inferences drawn from those facts in light of the officer’s experience.

Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999).

Assuming for the sake of argument that the interaction between the

police officer and Appellant was not a mere encounter but was an

investigative detention, we conclude that no relief is due. Our review of the

record reflects that the police officer in question possessed the requisite

reasonable suspicion when he approached Appellant. Officer Thomas Venios

of the Altoona Police Department testified that on November 4, 2012, at

approximately 1:00 a.m., he was dispatched to Mason Jar Bar in relation to

a large disturbance at the establishment. N.T., 10/11/13, at 2-4. He

explained that numerous officers went to the scene and needed to empty the

bar and disperse the patrons away from the area. Id. at 3-4. Officer Venios

then entered his patrol car, and drove around the immediate area to ensure

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that the patrons were dispersing. Id. at 4. Officer Venios testified that the

neighborhood was a high crime area. Id. at 4-5. The officer explained that,

while he was driving through the area, he observed Appellant standing in a

dark recessed alcove that was part of a local church about a block from the

Mason Jar Bar. Id. at 6-7. Officer Venios testified that Appellant’s behavior

appeared suspicious because the church was closed at the time. Id. at 7.

The officer stated that he could not tell whether Appellant was somebody

who was not dispersing from the area, or whether he was someone

attempting to break into the church. Id. The officer then turned on his

search light to illuminate the area, and he approached Appellant. Id.

The totalities of these facts, in the knowledge of the officer at the

time, were sufficient to establish reasonable suspicion of criminal activity

necessary to detain Appellant. Thus, because the police officer articulated

facts at the suppression hearing that would give rise to a reasonable

suspicion of criminal activity, we conclude that the investigative detention

was lawful. Accordingly, Appellant’s first issue lacks merit.

In his second issue, Appellant again argues that the trial court erred in

failing to suppress evidence. Specifically, Appellant claims that the trial

court improperly determined that the police officer possessed probable cause

to arrest Appellant.

“An arrest is defined as any act that indicates an intention to take the

person into custody and subjects him to the actual control and will of the

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person making the arrest. . . . The test is an objective one, i.e., viewed in

the light of the reasonable impression conveyed to the person subjected to

the seizure rather than the strictly subjective view of the officers or the

persons being seized.” Commonwealth v. Butler, 729 A.2d 1134, 1137

(Pa. Super. 1999) (quoting Commonwealth v. Rodriquez, 614 A.2d 1378,

1384 (Pa. 1992)).

It is well settled that the police may make a warrantless arrest if

probable cause exists. Commonwealth v. Santiago, 736 A.2d 624, 629-

630 (Pa. Super. 1999). Probable cause for an arrest 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. Id. at 630. Probable

cause justifying an arrest is determined by the totality of the circumstances.

Commonwealth v. Colon, 777 A.2d 1097 (Pa. Super. 2001). Probable

cause does not require certainty, but rather exists when criminality is one

reasonable inference, not necessarily even the most likely inference.

Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004). We

have long stated that in determining whether probable cause existed in a

particular situation, a court will look not just at one or two individual factors,

but will consider the “totality of the circumstances” as they appeared to the

arresting officer. Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa.

Super. 1992).

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Applying these standards to the instant case, we conclude that Officer

Venios presented facts at the suppression hearing sufficient to establish

probable cause, thereby justifying Appellant’s arrest. Our review of the

record reflects that Officer Venios was dispatched to a large disturbance at

the Mason Jar Bar in the early morning hours of November 4, 2012. N.T.,

10/11/13, at 2-4. At the time of the disturbance, the neighborhood was a

high crime area. Id. at 4-5. After helping to clear the bar of customers,

Officer Venios patrolled the immediate area in his police cruiser to ensure

that the patrons had dispersed. Id. at 3-4. At that point, Officer Venios

observed Appellant leaning in a dark alcove of a neighboring church. Id. at

6-7. Officer Venios then turned on his search light to illuminate the area,

exited his vehicle, and approached Appellant. Id. at 7. Officer Venios

testified that, upon making contact with Appellant, he “detected a strong

odor of alcoholic beverage coming from [Appellant’s] mouth as he was

speaking.” Id. at 8. Officer Venios also stated that “[Appellant’s] eyes were

glassy and bloodshot, he was unsteady on his feet.” Id. The officer also

indicated that Appellant’s speech was slurred. Id. at 9. After a short

conversation with Appellant, during which Appellant indicated that he

consumed six or seven beers, the officer placed Appellant under arrest for

public drunkenness. Id. at 8, 10.

The totality of the facts, in the knowledge of Officer Venios at the time,

was sufficient to justify a person of reasonable caution in believing that

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Appellant had committed the crime. Santiago, 736 A.2d at 629-630.

Therefore, the officer possessed probable cause necessary to permit the

warrantless arrest of Appellant. Thus, the suppression court properly denied

Appellant’s motion to suppress, and Appellant’s contrary argument lacks

merit.

In his final issue, Appellant argues that the trial court improperly

shifted the burden of proof to Appellant. Basically, Appellant claims that the

trial court gave an incorrect jury instruction in response to a jury question.

Appellant contends that the trial court erroneously shifted the burden of

proof to Appellant when the court indicated that the jury should find

Appellant guilty if it did not believe Appellant’s testimony.

In our inquiry, we are cognizant of the following standard of review.

“[W]hen evaluating the propriety of jury instructions, this Court will look to

the instructions as a whole, and not simply [to] isolated portions, to

determine if the instructions were improper.” Commonwealth v.

Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (citation omitted). “The

trial court is free to use its own expressions as long as the concepts at issue

are clearly and accurately presented to the jury.” Commonwealth v.

Ballard, 80 A.3d 380, 407 (Pa. 2013) (citation omitted). The instructions

must adequately, accurately, and clearly present the law to the jury and

must be sufficient to guide the jury in its deliberations. Commonwealth v.

Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996).

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However, before we reach the merits of Appellant’s claim, we must

determine whether the issue has been preserved for appellate review. A

party’s obligation to object to jury instructions is set forth in Pennsylvania

Rule of Criminal Procedure 647, which provides, in relevant part, as follows:

Rule 647. Request for Instructions, Charge to the Jury,
and Preliminary Instructions.

***

(B) No portions of the charge nor omissions therefrom may be
assigned as error, unless specific objections are made thereto
before the jury retires to deliberate.

Pa.R.Crim.P. 647(B). See also Pa.R.A.P. 302(b) (“A general exception to

the charge to the jury will not preserve an issue for appeal. Specific

exception shall be taken to the language or omission complained of.”).

Interpreting this rule, our Supreme Court has held that the plain

language of Rule 647(B) requires a specific objection to assign error to a

controverted aspect of or omission from a jury charge. Commonwealth v.

Pressley, 887 A.2d 220, 223 (Pa. 2005). The Court has held further that,

in the event counsel fails to posit the appropriate objection prior to the jury’s

retirement for deliberation, the underlying point is not preserved for

appellate review and will be deemed waived on appeal. Id. See

Commonwealth v. Sherwood, 982 A.2d 483, 505 (Pa. 2009) (citing

Pa.R.Crim.P. 647(B); Commonwealth v. Montalvo, 956 A.2d 926, 935-

936 (Pa. 2008) (holding that the law is clear that, in order to preserve a

claim predicated on an allegedly erroneous jury instruction, a litigant must

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raise an objection before the jury retires to deliberate)). See also

Commonwealth v. Betz, 664 A.2d 600, 606 (Pa. Super. 1995) (applying

then Pa.R.Crim.P. 1119 (renumbered Pa.R.Crim.P. 647) and finding waiver

for failure to make specific timely objection to supplemental jury instruction

before the jury returned to deliberations, even if the jury charge is palpably

in error).

Our review of the record reflects that after the jury began

deliberations, it contacted the judge with various questions. N.T., 3/25/14,

at 145. The jury was then brought back into the court room in order for the

judge to address the following questions:

1) Is your common sense a resource or should it be used as your
deciding factor in voting guilty or not guilty?

2) Please review reasonable doubt criteria.

3) Please review burden of proof; does the Commonwealth need
to prove this, to what extent.

4) In order for us to reach a consensus, did [Appellant] need to
know what he had was illegal to possess?

Id. at 146, 147, 148.

The record further reveals that in responding to the jury’s fourth

question, the trial court stated the following, which Appellant contends

improperly shifted the burden of proof away from the Commonwealth:

Your fourth question says, in order for us to reach a consensus,
did [Appellant] need to know what he had was illegal to possess?
This was probably, in a sense, the hardest and the easiest one to
answer. I don’t like --- you should not think that I’m telling ---
trying to take over your job. Your job is to decide the facts; my

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job is to give you the law and you’re stuck with what I give you
as the law but I never intrude and there’s some judges that I
think do. They try to rephrase the facts and give you a
summary of them. I’ve never done that. I’ve never felt
comfortable with that but in this case, it’s pretty simple. If you
believe that [Appellant] did not know that the pill in his pocket
was a controlled substance, you should find him not guilty. If
you believe [Appellant’s] testimony when he testified, you
should find him not guilty. If you do not believe that
testimony, then the facts would take you to where you
should find him guilty. I mean, this case hinges on
whether or not you believe the defense that [Appellant]
offered in his testimony and that was that he received this
--- the pill that you know to be a controlled substance
now, that he did not know it was a controlled substance.
So, if you believe [Appellant’s] testimony, you should find
him not guilty. I think [the Assistant District Attorney]
said that in his closing. If you don’t believe him, you
know, then it takes you down the other path.

Id. at 148-149 (emphasis added). Thereafter, the exchange occurred:

[TRIAL COURT]: Counsel, either one of you disagree with that or
want to say something else?

[DEFENSE COUNSEL]: No, Your Honor. Thank you.

[ASSISTANT DISTRICT ATTORNEY]: No, Your Honor. Thank you.

Id. at 149.

Thus, as the record indicates, at the conclusion of the instruction to

the jury, Appellant was given an opportunity to make a timely objection to

the instruction as given and did not do so. Accordingly, because Appellant

failed to object to the trial court’s instruction before the jury retired to

deliberate, his claim is waived.

Judgment of sentence affirmed.

P.J.E. Ford Elliott joins this Memorandum.

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Judge Wecht files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2015

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