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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL D. TWYMAN
Appellant No. 2400 EDA 2015
Appeal from the Judgment of Sentence July 8, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002588-2014
BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 15, 2016
Michael D. Twyman appeals from the July 8, 2015 judgment of
sentence of three years probation imposed by the trial court after a jury
found Appellant guilty of possession of a controlled substance (“possession”)
and possession of drug paraphernalia (“paraphernalia”). Counsel filed a
petition to withdraw from representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.
On July 26, 2014, Mr. John M. Moss, a victim in a recent shooting,
contacted Coastesville city police to report that he witnessed his assailant in
a particular deli. Mr. Moss provided the police with a description of his
attacker, and after being transported to the police station, identified the
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suspect from a photographic array. The police then provided this
description, and the suspect’s last known location, to patrol units in the area.
Shortly thereafter, Officer Joseph Norcini confronted Appellant because
Appellant matched the description provided by Mr. Moss, and was walking
within a block of the deli where the suspect was last seen. Officer Norcini
initiated an investigatory stop to determine whether Appellant was the
reported shooting suspect. Upon confronting Appellant, Officer Norcini
asked Appellant to identify himself. Appellant refused to do so. Noting that
Appellant kept putting his hands in his pockets, and fearing for his own
safety, Officer Norcini requested that Appellant position his hands on the
trunk of the police cruiser. Believing he had encountered an armed suspect,
Officer Norcini approached Appellant to frisk him for concealed weapons. As
Officer Norcini advanced, Appellant fled.
Police officers apprehended Appellant following a short foot pursuit. A
search incident to arrest revealed Appellant possessed thirty-six bags
containing a white substance, a large amount of cash, and a cell phone.
Field testing confirmed the white substance was cocaine.
The Commonwealth charged Appellant with possession with intent to
deliver a controlled substance, possession of a controlled substance,
possession of drug paraphernalia, flight to avoid apprehension, trial or
punishment, and resisting arrest. Appellant filed a motion to suppress
physical evidence arguing that Officer Norcini lacked reasonable suspicion to
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detain and frisk him. Following a hearing, the trial court denied Appellant’s
motion.
Subsequently, a jury found Appellant guilty of possession and
paraphernalia. The court sentenced him to three years probation for
possession, and a concurrent period of one year probation for paraphernalia.
Appellant filed a timely notice of appeal. In lieu of a Rule 1925(b) statement
of errors complained of on appeal, counsel filed a statement of intent to file
an Anders brief pursuant to Pa.R.C.P. 1925(d)(4). The trial court then
issued its 1925(a) opinion.
Appellant’s counsel now files a petition to withdraw and an
accompanying Anders brief, asserting that there are no non-frivolous issues
to be reviewed. In the Anders brief, counsel set forth the following as the
issue arguably supporting an appeal: “Did the trial court err in denying
Appellant’s motion to suppress physical evidence?” Anders brief at 2.
As we do not address the merits of issues raised on appeal without
first reviewing a request to withdraw, we evaluate counsel’s petition to
withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa.Super. 2013) (en banc). Counsel must meet three procedural
requirements in order to withdraw: 1) petition for leave to withdraw and
state that, after making a conscientious examination of the record, counsel
has concluded that the appeal is frivolous; 2) provide a copy of the Anders
brief to the defendant; and 3) inform the defendant that he has the right to
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retain private counsel or raise, pro se, additional arguments that the
defendant deems worthy of the court’s attention. Id.
Counsel’s petition to withdraw provides that she made a conscientious
examination of the record and concluded that the appeal is wholly frivolous.
Counsel advised Appellant that she was withdrawing and furnished him with
copies of the petition to withdraw and the Anders brief. Furthermore,
counsel instructed Appellant that he had the right to retain new counsel and
expressed that he could proceed pro se and raise any issues he believed this
Court should consider. The letter to Appellant is attached to the petition to
withdraw. Hence, we find counsel has adequately complied with the
procedural requirements of Anders.
We now consider whether counsel’s Anders brief meets the
substantive elements of Santiago. Pursuant to Santiago, an Anders brief
must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, supra at 361.
Counsel summarized the procedural posture and factual background of
the case with citations to the record. She also presented argument tending
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to support the appeal. Nevertheless, counsel concludes that Appellant’s
appeal is frivolous, setting forth reasons in support of that position, and case
law that holds that his issue would not entitle him to relief. Therefore,
counsel has complied with the requirements of Anders/Santiago.
We now proceed to examine the issue presented by counsel in the
Anders brief. In cases involving a review of the denial of a defendant’s
suppression motion, we are subject to the following standard of review:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth 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 suppression court’s
factual findings are supported by the record, [the appellate
court] is bound by [those] findings and may reverse only if the
court’s legal conclusions are erroneous. Where . . . the appeal of
the determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to []
plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015)
(quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
citations and quotation marks omitted)).
Initially, we observe that, in evaluating an interaction between law
enforcement and other citizens, Pennsylvania courts look to whether the
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interaction is a mere encounter, an investigatory detention, or a custodial
detention. A mere encounter does not require police to have any level of
suspicion that the person is engaged in wrongdoing. Commonwealth v.
Downey, 39 A.3d 401, 405 (Pa.Super. 2012). Such an encounter does not
compel the party to stop or respond. Id. An investigative detention
subjects an individual to a stop and a short period of detention. Id.
However, to conduct an investigative detention, police must have reasonable
suspicion of criminal activity. Id. Finally, a custodial detention must be
supported by probable cause. Id.
Neither party disputes that Officer Norcini conducted an investigatory
stop when he first approached Appellant. With regard to an investigatory
stop
a police officer may, short of an arrest, conduct an investigative
detention if he has a reasonable suspicion, based upon specific
and articulable facts, that criminality is afoot. The fundamental
inquiry is an objective one, namely, whether the facts available
to the officer at the moment of the intrusion warrant a man of
reasonable caution in the belief that the action taken was
appropriate. This assessment, like that applicable to the
determination of probable cause, requires an evaluation of the
totality of the circumstances, with a lesser showing needed to
demonstrate reasonable suspicion in terms of both quantity or
content and reliability.
Commonwealth v. Shabezz, 129 A.3d 529, 534 (Pa.Super. 2015) (citation
omitted, internal brackets omitted).
Following Appellant’s flight and apprehension, Officer Norcini detained
and arrested Appellant. The probable cause necessary for a custodial
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detention is “made out when the facts and circumstances which are within
the knowledge of the officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Fleet, 114 A.3d 840, 854
(Pa.Super. 2015) (citation omitted). The pertinent question “is not whether
the officer’s belief was correct or more likely true than false [but] rather, we
require only a probability, and not a prima facie showing, of criminal
activity.” Id. Similar to our reasonable suspicion analysis, “In determining
whether probable cause exists, we apply a totality of the circumstances
test.” Id.
Specifically, Appellant argues that the description provided by Mr.
Moss fit a large number of young men in the city of Coatesville. Anders
brief at 16. In addition, Appellant continues, it is not clear how much time
passed between Mr. Moss’s report and Officer Norcini’s observation of
Appellant. Id. Appellant maintains that Officer Norcini did not have
reasonable suspicion to believe Appellant committed a crime and that he was
presently armed. Id. Therefore, Appellant concludes that the physical
evidence arising from his detention should be suppressed. Alternatively, if
the court were to find Officer Norcini had reasonable suspicion to detain and
frisk Appellant, then he contends that the police lacked probable cause to
effectuate an arrest. Id. at 17.
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Instantly, Mr. Moss provided a description of his assailant to the police.
He depicted his attacker as a black male, approximately thirty years old, six
feet tall, 180-200 pounds in weight, and wearing a black hat, white t-shirt,
and either khaki capri shorts or pants. Mr. Moss then identified his assailant
from a photographic array provided by the police. This information and the
suspect’s last known location were communicated to nearby patrol units.
Shortly thereafter, and on the basis of this information, Officer Norcini
approached Appellant, who was a block from the suspect’s last known
location, to question him regarding his identity. At that time, Appellant, a
black man similar in age, height, and weight to the shooting suspect, was
wearing a black hat, a white t-shirt, and khaki capris. Upon being stopped,
Appellant refused to identify himself, fidgeted with his pockets, and failed to
keep his hands on the police cruiser as requested by the officer. Officer
Norcini, believing Appellant to be the perpetrator of a violent crime,
approached him to conduct a frisk for concealed weapons. Appellant fled the
scene before Officer Norcini could effectuate the pat down. The suppression
court found the officers who testified at the hearing to be credible, and
based on the above information, concluded that the officers lawfully detained
and arrested Appellant.
We agree. In light of the totality of the circumstances, the
suppression court had ample support in the record to find that Officer Norcini
had reasonable suspicion to detain Appellant, and probable cause to arrest
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him. Mr. Moss provided a reliable and specific description of the shooting
suspect. Appellant’s gender, race, age, height, weight, and clothing
matched this description. In addition, Officer Norcini approached Appellant
shortly after Mr. Moss made his report, and only one block from the
suspect’s last known location. This information would lead an objectively
reasonable police officer to suspect Appellant was the shooting suspect, and
in light of Appellant’s behavior, that he was presently armed. These facts,
coupled with Appellant’s subsequent flight, supported the officer’s
reasonable suspicion to stop Appellant, and probable cause for his arrest.
See Commonwealth v. Legg, 392 A.2d 801, 803 (Pa.Super. 1978) (finding
flight alone not sufficient to establish probable cause to arrest, but flight
coupled with additional facts pointing to suspect’s guilt may establish
probable cause). The suppression court did not err.
We have reviewed the certified record and find no other preserved
issues or non-waivable claims that might be advanced that are meritorious.
Accordingly, we agree that Appellant’s appeal is wholly frivolous.
Petition of Maria Heller, Esq., to withdraw is granted. Judgment of
sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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