Com. v. Cain, C.

J. S33009/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CASSEEM CAIN, : No. 2792 EDA 2014
:
Appellant :

Appeal from the Judgment of Sentence, August 26, 2014,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0008250-2013

BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 10, 2015

Appellant appeals the judgment of sentence contending that the trial

court erred in failing to suppress the evidence against him. We affirm.

On July 23, 2014, a jury found appellant guilty of two counts of

possessing a controlled substance with intent to deliver, and two counts of

simple possession.1 On August 26, 2014, the trial court imposed an

aggregate sentence of 36 to 72 months’ imprisonment plus 3 years’

probation. During trial, the parties litigated a suppression motion which

sought suppression of evidence recovered when police performed an initial

Terry stop of appellant on November 20, 2013,2 and also subsequent

1
35 P.S. § 780-113(a)(30) and (a)(16), respectively.
2
Terry v. Ohio, 392 U.S. 1 (1969).
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evidence uncovered at appellant’s apartment pursuant to a search warrant

which was obtained predicated on the evidence uncovered during the Terry

stop. The trial court made the following findings of fact after the

suppression hearing:

1. On November 20, 2013, Darby Borough Police
Officer John Ettore arrested and charged the
Defendant, Caseem Cain, with: three counts of
Possession With Intent to Deliver a Controlled
Substance (Cocaine), three counts Possession
of a Controlled Substance, (Cocaine), three
counts of Possession of Drug Paraphernalia,
Selling Controlled Substance Without Label,
(Xanax) and Endangering Welfare of Children.

2. On April 4, 2014, Defendant, through counsel,
filed a Motion to Suppress Evidence requesting
the suppression of items found and seized from
his person: (1) one clear glassine baggie
containing a white solid suspected of being
crack cocaine, (2) $1,081.00 U.S. currency,
(3) keys, and a (4) a cell phone.

3. The Defendant alleges that his stop, search,
and arrest were made without reasonable
suspicion and/or probable cause.

4. Defendant, through counsel, in his Motion to
Suppress Evidence also requests the
suppression of items found and seized as a
result of a search warrant of his residence.
The following items were seized from his
residence: (1) a cellophane wrapper containing
suspected cocaine, (2) rental receipts, (3) a
postal receipt, (4) an appointment card from
Adult Probation, (5) three five dollar bills,
(6) two small glassine baggies, (7) a digital
scale, (8) one unmarked prescription bottle
containing blue pills, (9) a bag of change
containing approximately $36.85, (10) two
parcels of mail addressed to the defendant,

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(11) one apple-designed clear baggie, (12) one
composition notebook, (13) numerous
correspondence between the defendant and his
attorney, the courts, and prison, and
(14) men’s clothing.

5. The Defendant alleges that the search
pursuant to search warrant was in violation of
his rights under the 4th, 5th, and 14th
amendments of the U.S. Constitution, Article I,
Section 8 and Section 9 of the Pennsylvania
Constitution.

6. On April 16, 2014, a Suppression Hearing was
held on Defendant’s “Suppression Motion.”

7. The Suppression Hearing began with
arguments to determine whether the
Defendant had an expectation of privacy in the
apartment located at 17 N. 2nd Street in Darby,
Pennsylvania that the Police searched.

8. The Defendant testified that he lived on the top
floor apartment, 17B, located at 17 N. 2nd
Street in Darby, Delaware County,
Pennsylvania. The Defendant had been renting
the apartment from Crystal Davis and her
mother, Michelle Davis. He resided at the
apartment with Crystal and Michelle Davis. He
had rented the apartment for about a month.
The Defendant possessed keys for the
apartment. The Defendant paid Michelle Davis
$200.00 per month for rent. He paid cash and
had receipts that were seized by the Police at
the time of the raid. The receipts, which were
from a receipt form indicating rent, were
located on a shelf, when the police seized
them.

9. The Court determined that the Defendant had
an expectation of privacy in apartment 17B
located at 17 N. 2nd Street in Darby,
Pennsylvania.

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10. Subsequent to this determination, part-time
Police Officer John Ettore, an Officer with the
Darby Borough Police Department, testified.
Officer Ettore testified that 17 N. 2nd street is a
high-crime and high-drug area. In fact, the
Officer has been involved in fifty (50) drug
investigations in that vicinity and has about
forty (40) drug arrests in that area.

11. Officer Ettore testified that he previously knew
of the Defendant from the County Drug Task
Force and through information received from a
Confidential Informant. The Confidential
Informant provided information that the
Defendant was staying at 17 N. 2nd Street.
The Officer stated that the Confidential
Informant also provided information that the
Defendant was engaged in drug transactions.
Despite this knowledge, however, the
Confidential Informant was never used to
obtain drugs from the Defendant.

12. Prior to stopping Defendant on November 20,
2013, Officer Ettore had observed the
Defendant traveling on Main Street in Darby,
Pennsylvania and observed the Defendant
engage in hand to hand transactions. During
these transactions, money was exchanged for
an item. These transactions had occurred in
the morning near the “Wishing Well Bar”, when
the Bar was not open, and also in the evening.

13. On redirect, Officer Ettore testified that two
weeks prior to the incident at issue,
Officer Ettore and Officer Paul McGrenera
observed an exchange by the Defendant and
another individual in the evening. Officer
McGrenera, with the assistance of Officer
Ettore, attempted to stop the other individual
involved in the transaction who ran away.
Both the Defendant and the other individual
managed to evade the Officers.

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14. On November 20, 2013, at 9:40 a.m.,
Officer Ettore was on duty working patrol when
he received a radio transmission reporting that
the Defendant had just left his residence. At
this point, Officer Ettore had been two blocks
away in uniform and a marked patrol vehicle.
Officer Ettore drove down Main Street and
observed the Defendant walking on Main
Street towards the 500 block of Main Street.

15. As soon as Officer Ettore saw the Defendant,
the Officer observed the Defendant take
something out of his pocket in his fist and look
back at the Officer. Officer Ettore further
explained that the Defendant was wearing a
sweatshirt and removed something from his
left pocket and looked back at the Officer.
Officer Ettore testified that he could not tell
what the object was. Officer Ettore also
testified that he had reason to believe that that
[sic] the Defendant was traveling to the
Wishing Well Bar.

16. As soon as Officer Ettore observed the
Defendant pull something from his pocket,
Officer Ettore called Officer Paul McGrenera.
Officer Ettore testified that he intended to stop
the Defendant when he saw the Defendant
remove something from his pocket.
Officer Ettore also testified that he did not
intend to arrest the Defendant on the morning
of the incident. The two Officers pulled up
onto the sidewalk upon which the Defendant
was walking. Officer Ettore testified that
neither he nor Officer McGrenera activated
their overhead lights at the time of the stop.

17. Officers Ettore and McGrenera exited their
respective vehicles with no weapons drawn.
When Officer Ettore exited his vehicle, he was
approximately (3) three to (4) four feet away
from the Defendant and saw the Defendant
throw a clear, plastic baggie on the ground.
Officer Ettore further clarified that he had been

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approaching the Defendant from behind, with
the Defendant’s back to the Officer, and that
the Defendant threw the baggie in the Officer’s
direction. At this point, neither Officer had
spoken to the Defendant.

18. The baggie that Officer Ettore observed the
Defendant discard was a clear, plastic baggie
containing four smaller baggies with a white
substance inside. The Officer observed the
baggie on the ground before telling the
Defendant to place his hands on the vehicle.
The Defendant was then placed under arrest.
The contents of the baggie field-tested
positively for cocaine.

19. On cross examination, Officer Ettore testified
that he prepared the Affidavit of Probable
Cause for the search warrant. The basis for
the search warrant was the contraband
recovered at the stop.

20. After Officer Ettore’s testimony, Officer
Paul McGrenera testified. Officer McGrenera
has been a Yeadon Borough Patrolman for the
past five years. On the date of the incident,
Officer McGrenera had been a Darby Borough
Patrolman for three years. Officer McGrenera
testified that N. 2nd Street is known to be a
high-crime and high-drug area.
Officer McGrenera has been involved in more
than 100 investigations for drugs and more
than 50 arrests for drugs in the vicinity of this
incident.

21. Officer McGrenera testified that he knew the
Defendant prior to this incident. In the month
prior to this incident, Officer McGrenera had
observed the Defendant in the same area
around the Wishing Well Bar both in the
morning and evening hours. The Wishing Well
Bar is not open during the morning hours.

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22. On November 20, 2013, Officer McGrenera was
on duty and in uniform. The Officer received a
call from Officer Ettore that Officer Ettore was
going to make an investigatory stop.
Officer McGrenera testified that he did not
intend to arrest the Defendant on the morning
of the incident.

23. Officer McGrenera testified that he pulled up
onto the sidewalk upon which the Defendant
was walking. As the Officer exited his patrol
vehicle, he saw the Defendant discard a clear,
plastic baggie. At this point, the Defendant
was ordered to place his hands on the patrol
vehicle.

24. The Defendant also testified. The Defendant
testified that he had been walking along the
sidewalk when two police officers pulled up and
told him to put his hands up. The Defendant
contends that he took his hands out of his
pocket and, as a result, the baggie fell out of
his pocket. On cross-examination, the
Defendant testified that the Officers did not
activate their overhead lights on their patrol
vehicles.

Order Denying Defendant’s Suppression Order, 5/1/14 at 1-5.

We begin our analysis with our standard of review:

Our standard of review of a denial of suppression is
whether the record supports the trial court’s factual
findings and whether the legal conclusions drawn
therefrom are free from error. Our scope of review
is limited; we may consider only the evidence of the
prosecution 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 findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.

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Commonwealth v. Wilson, 111 A.3d 747, 754 (Pa.Super. 2015), quoting

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super. 2002)

(citations omitted).

Our courts have recognized three levels of interaction between police

and citizens, each requiring three increasing quantities of suspicion:

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.

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.Super. 2014), quoting

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa.Super. 2013) (citation

omitted), appeal denied, 87 A.3d 320 (Pa. 2014). Instantly, the police

interaction with appellant would constitute an investigative detention

requiring reasonable suspicion.

[T]o establish grounds for reasonable suspicion, the
officer must articulate specific observations which, in
conjunction with reasonable inferences derived from
those observations, led him reasonably to conclude,
in light of his experience, that criminal activity was
afoot and that the person he stopped was involved in
that activity. The question of whether reasonable
suspicion existed at the time [the officer conducted
the stop] must be answered by examining the
totality of the circumstances to determine whether
the officer who initiated the stop had a particularized
and objective basis for suspecting the individual
stopped.

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Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015), quoting

Commonwealth v. Muhammed, 992 A.2d 897, 900-901 (Pa.Super. 2010)

(citations omitted).

We find the trial court’s findings and conclusions are supported by the

record and we affirm on the basis of the trial court’s opinion. Experienced

police officers witnessed several suspicious hand-to-hand transactions by

appellant in a high drug activity area. They were familiar with appellant

having been alerted to his activity by a confidential informant and their own

observations. Weeks prior to the investigatory stop in this case, appellant

evaded another investigatory stop by the same officers after their

observation of a suspicious hand-to-hand transaction with another individual

who fled. Clearly, appellant was under suspicion as a drug dealer and

stopped en route to an area where he had previously been observed

engaging in such activity. Prior to appellant actually being stopped or

spoken to by the officers, he threw contraband to the ground. The

investigatory stop was reasonable. The discarded contraband was not

coerced.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2015

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 Circulated 07/28/2015 03:44 PM

IN TIIJi COURT OF COMMON PLEAS OF DELA WARE COUNTY, PENNSYLVANIA
CRJMINAL DIVISION

COMMONWF..ALTHOF PF.NNSYLVANIA NO. 8250-2013

v.
CASEEMCAfN

Matthew Deb[ucci, Esquire, Assistant District Attorney for the Commonwealth
Kenneth Sexton, Esquire,Attorney for the Defendant

ORDER DENYING DEFENDANT'S SUPPRESSION MOTION

AND NOW, this 29th day of April, 2014 upon consideration of the Defendant's

"Suppression Motion" and the Suppression Hearing held on April 16, 2014, it is hereby

ORDEREDAND DECREED that the Motion is DENIED.

The Court finds as foJlows:

I. FINDINGS OF FACT

1. On November 20, 2013, Darby Borough Police Officer John Ettore arrested
and charged the Defendant, Caseem Cain, with: three counts of Possession·
With Intent lo Deliver a Controlled Substance'(Cocaine), three counts
Possession of a Controlled Substance,2 (Cocaine); three counts of Possession
of Drug Paraphemalia.i Selling Controlled Substance Without Label,11
(Xanax) and EndangeringWelfare of Children.s

2. On April 4, 2014, Defendant, through counsel, filed a Motion to Suppress
Evidence requesting the suppression of items found and seized from his
person: (1) one clear glassine baggie containing a white solid suspected of
being crack cocaine, (2) $1,081 .00 U.S. currency, (3) keys, and a (4) a cell
phone. ·

1
35 Pa.C.S. §780-J 13(a)(30)
135
Pll.C.S. §780-l 13(a)(16)
3
35 Pa.C.S. §780-l 13(a)(32)
4
18 J>a.C.S. §780-1 I 3(a)( l 8)
5
18 J'a.C.S. §4304(a)(I)
 Circulated 07/28/2015 03:44 PM

3. The Defendant alleges that his stop, search, and arrest were made without
reasonable suspicion and/or probable cause.

4. Defendant, through counsel, in his Motion to Suppress Evidence also requests
the suppression of items found and seized as a result of a search warrant of his
residence. The foJlowing Hems were seized from his residence: (I) a
cellophane wrapper containing suspected cocaine, (2) rental receipts, (3) a
postal receipt, (4) an appointment card from Adult Probation, (5) three five
doJJar bills, (6) two small glassine baggies, (7) a digital scale, (8) one
unmarked prescription bottle containing blue pills, (9) a bag of change
containing approximately $36.85, (10) two parcels of mail addressed lo the
defendant, (11) one apple-designed clear baggie, (12) one composition
notebook, ( 13) numerous correspondence between the defendant and his
attorney, the courts, and prison, and (14) men's clothing".

5. The Defendant alleges that the search pursuant to search warrant was in
violation of his rights under the 4th, 5lli and 14t11 amendments of the U.S.
Constitution, Article I, Section 8 and Section 9 of the Pennsylvania
Constitution.

6. On April 16, 2014, a Suppression Hearing was held on Defendant's
"Suppression Motion."

7. The Suppression Hearing began with arguments to determine whether the
Defendant had an expectation of privacy in the apartment located at 17 N. 2nd
Street in Darby, Pennsylvania that the Police searched.

8. The Defendant testified that be lived on the top floor apartment, 17B, located
al 17 N. 2"d Street in Darby, Delaware County, Pennsylvania. Toe Defendant
had been renting the apartment from Crystal Davis and her mother, Michelle
Davis. He resided at the apartment with Crystal and Michelle Davis. He bad
rented the apartment for about a month. 111e Defendant possessed keys for the
apartment. The Defendant paid Michelle Davis $200.00 per month for rent.
He paid cash and had receipts th.at were seized by the Police at the time of the
raid. The receipts, which were from a receipt form indicating rent, were
located on a shelf, when the police seized them.

9. The Court determined that the Defendant had an expectation of privacy in
apartment l 7B located at 17 N. 211