J-S69041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID LEWIS GLADDEN,
Appellant No. 252 MDA 2016
Appeal from the Judgment of Sentence January 29, 2016
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0006077-2014
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 02, 2016
Appellant, David Lewis Gladden, appeals from the judgment of
sentence entered on January 29, 2016, following his non-jury conviction of
two counts of possession with intent to deliver (PWID) 1 and one count of
possession of drug paraphernalia.2 On appeal, Appellant challenges the trial
court’s denial of his motion to suppress. For the reasons discuss below, we
affirm.3
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(32).
3
Although we affirm, our reasoning is different from that of the trial court.
See Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1 (Pa. Super.
(Footnote Continued Next Page)
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We take the underlying facts and procedural history in this matter
from the trial court’s March 8, 2016 memorandum, the notes of testimony of
the suppression hearing, and our independent review of the certified record.
Detective Nicholas Licata of the Harrisburg Police
Department was working surveillance on October 14, 2014.
Specifically, he was watching a building on the 300 block of
South 14th Street in the city from a building directly across the
street. [Detective] Licata was working with the Attorney
General’s Office and was aware that the building across the
street was a drug buying location.
At about 8:15 p.m. he saw a tan-colored Buick approach
the residence and park right in front of the building he was in.
The driver [later identified as Appellant] was wearing a blue
collared shirt. A black male [later identified as Zac Evans] with a
hood[ed] sweatshirt walked off of the porch of the residence
being watched and entered the vehicle. He appeared to be just
talking to the driver and was in the car for about a minute.
[Evans] exited the vehicle, returned to the porch and made []
hand[-]to[-]hand exchange[s] with two men on the porch.
[Detective] Licata did not see any plastic baggies, drug
paraphernalia or currency change hands. [Evans] then went
back to the car and got in. [Detective] Licata saw [Evans] take
something out of his pocket, [Appellant] looked at it and then
they drove away. [Detective] Licata also testified that he rarely
sees the actual items in hand[-]to[-]hand exchanges.
[Detective] Licata got the license plate and then called the
Street Crimes Unit which was nearby to possibly stop the car as
he believed it was involved in drug activity. This was based on
his knowledge and experience with regard to hand[-]to[-]hand
drug exchanges. The car was ultimately stopped.
_______________________
(Footnote Continued)
1992) (“It is well-settled that an appellate court may affirm the decision of
the trial court if there is any basis on the record to support the trial court’s
action. This is so even if we rely upon a different basis in our decision to
affirm.”) (citations omitted).
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On October 14, 2014, Officer Anthony Fiore of the
Harrisburg Police Department was working the Street Crimes
Unit with the unit supervisor, Sergeant [Milo] Hooper. After
receiving [Detective] Licata’s call, they initiated a traffic stop on
the car identified by license plate number as the car was silver,
not tan as [Detective] Licata had believed. They were on the
1600 block of Chestnut Street when they activated their lights.
It’s a one way road and the car stopped immediately in the
middle of the road. [Officer] Fiore approached the passenger
side and [Sergeant] Hooper approached the driver side. They
asked them for identification and informed them they were
initiating a traffic stop based on suspected drug activity. They
discovered that [Evans] was a fugitive from state parole out of
York County and he was immediately taken into custody without
incident.
[Officer] Fiore’s vehicle is not equipped with computers so
when they run an individual’s name they call back to [c]ounty
dispatch to run the name. Dispatch then informs them of the
license status. He was told that Appellant’s license was
suspended. As Appellant had a suspended license, he would not
be permitted to drive the vehicle away. According to the
certified PennDOT records, Appellant was in possession of a
probationary license as of the date of the incident, though
according to Fiore’s testimony, he only was told that the license
was suspended and had no information regarding a probationary
license.
[Officer] Fiore determined that Appellant’s grandmother
owned the vehicle, but it is not department policy to call the
owner unless there are exigent circumstances. An example of a
circumstance where they would call the owner, is if the car was
stopped due to a medical emergency and they had no reason to
hold the car. The usual policy is to tow the vehicle. The
department also has an inventory policy when towing a vehicle,
that is, they check the vehicle to make sure that any valuables
are accounted for so that there aren’t any issues with missing
items later. Prior to making the decision to tow the vehicle,
[Officer] Fiore did not see anything in plain view.
As they were going to tow the vehicle, an inventory search
was done on the entire vehicle pursuant to policy. During this
search they located two sandwich bags of marijuana in the
center console and two smaller bags of suspected MDMA or
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cocaine. Field tests showed positives for marijuana and MDMA.
[Officer Fiore] also found a digital scale and wallet.
The wallet contained Appellant’s Social Security card and
ID card. [Officer] Fiore also searched the trunk where he found
three bags of marijuana. Upon finding the drugs, Appellant was
arrested and searched incident to the arrest; they found
$450[.00] and a cell phone. . . .
(Trial Court Opinion, 3/08/16, at 1-4) (record citations omitted).
On January 26, 2015, the Commonwealth filed a criminal information
charging Appellant with two counts of PWID and one count of possession of
drug paraphernalia. (See Criminal Information, 1/26/15, at unnumbered
page 1). On June 1, 2015, Appellant filed an omnibus pre-trial motion to
suppress, arguing that the police lacked probable cause for the motor
vehicle stop and that the inventory search of the car was illegal. (See
Omnibus Pre-Trial Motion, 6/01/15, at unnumbered pages 4-5). A
suppression hearing took place on June 17, 2015, at the close of which, the
trial court denied Appellant’s motion to suppress. (See N.T. Suppression
Hearing, 6/17/15, at 49-51).
On January 8, 2016, Appellant filed a motion to vacate the denial of
the motion to suppress based upon the original trial judge’s subsequent
recusal and the reassignment of the case to a new judge. (See Motion to
Vacate Prior Ruling, 1/08/16, at unnumbered pages 1-2). On January 11,
2016, the trial court granted the motion to vacate. On January 29, 2016, a
second suppression hearing took place immediately prior to trial. The trial
court denied the motion to suppress. (See N.T. Suppression Hearing,
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1/29/16, at 78). Following a bench trial, the trial court convicted Appellant
of all charges. (See id. at 83). By agreement of the parties, the trial court
immediately moved to sentencing and sentenced Appellant to a term of
incarceration of not less than one and one-half nor more than three years, to
be served consecutively to any other sentence Appellant was then serving
and a concurrent term of five years of probation. (See id. at 89-90).
On February 4, 2016, Appellant filed a timely notice of appeal. On
February 8, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on February 24, 2016. See
id. On March 8, 2016, the trial court issued a memorandum. See Pa.R.A.P.
1925(a).
On appeal, Appellant raises the following issue for our review:
I. Did not the [trial] court err in denying [Appellant’s]
motion to suppress physical evidence seized following a traffic
stop?
(Appellant’s Brief, at 4) (unnecessary capitalization and underlining
omitted).
On appeal, Appellant challenges the denial of his motion to suppress.
(See id. at 10-16). When we review a ruling on a motion to suppress, “[w]e
must determine whether the record supports the suppression court’s factual
findings and the legitimacy of the inferences and legal conclusions drawn
from these findings.” Commonwealth v. Holton, 906 A.2d 1246, 1249
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(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation
omitted). Because the suppression court in the instant matter found for the
prosecution, we will consider only the testimony of the prosecution’s
witnesses and any uncontradicted evidence supplied by Appellant. See id.
If the evidence supports the suppression court’s factual findings, we can
reverse only if there is a mistake in the legal conclusions drawn by the
suppression court. See id.
Appellant first argues that the police lacked probable cause to stop his
vehicle. (See Appellant’s Brief, at 10-14). In response, the Commonwealth
avers that reasonable suspicion, not probable cause, is the proper standard
of review. (See Commonwealth’s Brief, at 6-10). For the reasons discussed
below, we agree with the Commonwealth and find that the police possessed
sufficient reasonable suspicion of criminal activity to justify the motor vehicle
stop.
Initially, we note that this Court has held that there are three levels of
interaction between citizens and police officers: (1) mere encounter, (2)
investigative detention, and (3) custodial detention. See Commonwealth
v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005). Thus, we have stated:
A mere encounter can be any formal or informal
interaction between an officer and a citizen, but will normally be
an inquiry by the officer of a citizen. The hallmark of this
interaction is that it carries no official compulsion to stop or
respond.
In contrast, an investigative detention, by implication,
carries an official compulsion to stop and respond, but the
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detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the coercive
conditions consistent with a formal arrest. Since this interaction
has elements of official compulsion it requires reasonable
suspicion of unlawful activity. In further contrast, a custodial
detention occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
Id. (citation omitted).
A police officer is authorized to make a brief investigative stop of a
motor vehicle if he has “objective facts creating a reasonable suspicion that
the detained motorist is presently involved in criminal activity.”
Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa. Super. 2010) (en
banc), appeal denied, 25 A.3d 327 (Pa. 2011) (quoting Commonwealth v.
Murray, 331 A.2d 414, 418 (Pa. 1975)). To determine if reasonable
suspicion exists, the court must look to the totality of the circumstances. In
discussing reasonable suspicion, this Court has stated that:
Reasonable suspicion is a less stringent standard than
probable cause necessary to effectuate a warrantless arrest, and
depends on the information possessed by police and its degree
of reliability in the totality of the circumstances. In order to
justify the seizure, a police officer must be able to point to
specific and articulable facts leading him to suspect criminal
activity is afoot. In assessing the totality of the
circumstances, courts must also afford due weight to the
specific, reasonable inferences drawn from the facts in
light of the officer’s experience and acknowledge that
innocent facts, when considered collectively, may permit
the investigative detention.
Commonwealth v. Downey, 39 A.3d 401, 406 (Pa. Super. 2012), appeal
denied, 50 A.3d 124 (Pa. 2012) (citation omitted) (emphasis added); see
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also Commonwealth v. Brown, 23 A.3d 544, 551 (Pa. Super. 2011) (en
banc) (combination of experienced police officer and suspicious, although
not illegal behavior of appellant, was sufficient to justify automobile stop);
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006) (court
must give due weight to “specific reasonable inferences [the police officer] is
entitled to draw from the facts in light of his experience. . . . even a
combination of innocent facts, when taken together may warrant further
investigation by the police officer.”) (citation and quotation marks omitted);
Commonwealth v. Hayes, 898 A.2d 1089, 1094 (Pa. Super. 2006)
(“[a]lthough Appellee’s behavior may also have been consistent with
innocent behavior, that alone does not make the investigatory detention
unlawful.”) (citation omitted).
Here, Detective Licata, an experienced police officer, was conducting
surveillance, at night, in a high-crime area. (See N.T. Suppression Hearing,
1/29/16, at 4-6, 9). He was watching a house on the 300 block of South
14th Street, Harrisburg, that was a known drug house. (See id. at 6).
Detective Licata observed a Buick, driven by Appellant, approach; it parked
directly across the street from the house (and in front of the building that
Detective Licata was in). (See id.). Zac Evans, who was on the porch of
the house, walked over to the car and briefly spoke with Appellant. (See
id.). He then walked back to the porch and engaged in hand-to-hand
exchanges with two other men sitting on the porch. (See id. at 6-7). Evans
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walked back to the car, took something out of his pocket and handed it to
Appellant. (See id. at 7). Evans got into the car and he and Appellant
drove away. (See id.). Detective Licata did not see the items exchanged
but testified that he rarely sees the actual items in hand-to-hand exchanges,
however, based upon his experience he believed that Evans was getting
money from the men to give to Appellant with the intent of buying drugs.
(See id. at 9-10, 16). These observations provided sufficient reasonable
suspicion to justify the stop of Appellant’s vehicle. See Commonwealth v.
Clemens, 66 A.3d 373, 380 (Pa. Super. 2013) (finding sufficient reasonable
suspicion to justify investigative detention where experienced police officers
patrolling in high-crime area observed hand-to-hand transaction between
two men); see also Commonwealth v. Thompson, 985 A.2d 928, 936
(Pa. 2009) (holding there was probable cause to stop, search, and seize
defendant based upon experienced police officer’s observation of hand-to-
hand transaction at night in high-crime area). Thus, because there was
reasonable suspicion justifying the stop of Appellant’s car, the trial court did
not err in denying the motion to suppress. See Downey, supra at 406;
Fezcko, supra at 1288.
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Appellant next claims that the retention, impound, and search4 of the
vehicle was illegal. (See Appellant’s Brief, at 14-16). Specifically, Appellant
argues that he did possess a valid driver’s license at the time of the stop and
thus could have driven the vehicle. (See id. at 15-16). We disagree.
The procedure regarding immobilization of a vehicle is found at 75 Pa.
C.S.A. § 6309.2, which states in pertinent part:
(a) General rule.—Subject to subsection (d), the following shall
apply:
* * *
(2) If a motor vehicle or combination for which there
is no valid registration or for which the registration is
suspended, as verified by an appropriate law
enforcement officer, is operated on a highway or
trafficway of this Commonwealth, the law
enforcement officer shall immobilize the motor
vehicle or combination or, in the interest of public
safety, direct that the vehicle be towed and stored
by the appropriate towing and storing agent
pursuant to subsection (c), and the appropriate
judicial authority shall be so notified.
(b) Procedure upon immobilization.—
* * *
(2) When a vehicle is immobilized pursuant to
subsection (a)(2), the owner of the vehicle may
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4
We note that Appellant does not make a separate challenge to the
constitutionality of the inventory search. (See Appellant’s Brief, at 15-16).
The only basis for his challenge to the lawfulness of the search was that the
police did not have the authority to impound the vehicle because he
allegedly possessed a valid probationary license at the time of the stop.
(See id.).
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appear before the appropriate judicial authority
within 24 hours from the time the vehicle was
immobilized. The appropriate judicial authority may
issue a certificate of release upon:
(i) the furnishing of proof of registration
and financial responsibility by the owner
of the vehicle; and
(ii) receipt of evidence that the operator
of the vehicle has complied with the
pertinent provisions of Title 42 and this
title.
75 Pa.C.S.A. § 6309.2(a)(2), (b)(2)(i) and (ii) (emphasis added).
Here, Appellant does not dispute that the vehicle was parked in such a
manner as to represent a threat to public safety. (See Appellant’s Brief, at
15-16). Rather, he argues that the officers knew or should have known
that he possessed a valid probationary license at the time of the stop. (See
id.). We disagree.
Our review of the record demonstrates that, at the suppression
hearing, Police Officer Anthony Fiore and Sergeant Milo Hooper of the
Harrisburg Police Department stopped the car. (See N.T. Suppression
Hearing, 1/29/16, at 17-19). Appellant gave his name to the officers and
Officer Fiore contacted dispatch, who informed him that Appellant’s license
was suspended. (See id. at 22-23). Officer Fiore explained that his car
does not have a computer and, therefore, his is completely reliant on
dispatch for information regarding license status. (See id. at 23). Appellant
was not the owner of the vehicle. (See id. at 24). While Appellant
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produced certified PennDOT records at the suppression hearing that showed
that Appellant may have possessed a probationary driver’s license at the
time of the incident,5 (see id. at 41-43), Appellant does not highlight any
information in the record that demonstrates that the police were aware of it,
or that Appellant communicated this information to them. Essentially,
Appellant’s argument is that the police should have possessed a computer in
their car and, if they had, they would have been able to run Appellant’s
name and ascertain that he had a valid probationary license. (See
Appellant’s Brief, at 15). Appellant does not point to, and we are unaware
of, any case that has suppressed evidence on the basis that a police car was
not fitted with the most up-to-date technology or has faulted the police for
relying on information from county dispatch that later proved to be incorrect.
Here, the Commonwealth demonstrated that the vehicle was a threat
to public safety. Sergeant Hooper testified that the vehicle stopped in a very
narrow area and between Appellant’s automobile and the vehicles parked on
the street, a car could not pass it. (See N.T. Suppression Hearing, 6/17/15
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5
It is somewhat unclear that the probationary license allowed Appellant to
drive the vehicle in question. The records produced by Appellant appear to
apply to a different car, thus it is questionable if Appellant was allowed to
drive the vehicle. (See N.T. Suppression Hearing, 1/29/16, at 43-44).
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at 38).6 He testified that there was no legal parking spot to pull the car into
and that this was creating a traffic problem. (See id. at 38-39, 45).
Further, the evidence supports the suppression court’s factual finding that
the only information possessed by the police was that Appellant’s license
was suspended. (See Trial Ct. Op., at 5). Thus, the trial court did not err in
finding that the police had the authority to retain and tow the vehicle. 7 See
Commonwealth v. Palmer, — A.3d —, 2016 WL 4191819 at *4 (Pa.
Super. filed Aug. 4, 2016) (finding police properly impounded and towed
vehicle where it was parked illegally and none of occupants had valid driver’s
license); Cf. Commonwealth v. Langanella, 83 A.3d 94, 102 (Pa. 2013)
(holding police lacked evidence to impound vehicle where it was undamaged,
legally parked, and not creating safety hazard).
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
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6
Sergeant Hooper was unavailable to testify at the second suppression
hearing and the parties agreed to admit his testimony from the initial
suppression hearing. (See N.T. Suppression Hearing, 1/29/16, at 56).
7
Since Appellant’s contention that the police illegally searched the vehicle is
dependent upon his claim that it was illegally impounded, we will not further
address the issue.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2016
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