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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSHUA BAVIN,
Appellant No. 1416 WDA 2014
Appeal from the Judgment of Sentence Entered February 7, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001914-2013
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 19, 2017
Appellant, Joshua Bavin, appeals from the judgment of sentence of an
aggregate term of 5 to 15 years’ incarceration, followed by 4 years’
probation, imposed after he was convicted of multiple counts of drug-related
offenses. Appellant challenges the trial court’s denial of his pretrial motion
to suppress, as well as the legality of a mandatory-minimum sentence
imposed in his case. After careful review, we affirm Appellant’s convictions,
but vacate his judgment of sentence and remand for resentencing.
In January of 2013, Appellant was arrested and charged with two
counts of possession with intent to deliver a controlled substance, 35 P.S. §
780-113(a)(30); two counts of possession of a controlled substance, 35 P.S.
§ 780-113(a)(16); and one count of criminal conspiracy, 18 Pa.C.S. § 903.
Prior to trial, Appellant filed a motion to suppress evidence, and a hearing
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was conducted on November 13, 2013. At the close of that proceeding, the
trial court denied Appellant’s motion. His case proceeded to a jury trial,
where Appellant was convicted of the above-stated offenses. He was
sentenced to the aggregate term stated, supra, on February 7, 2014.
Appellant filed a timely post-sentence motion, which the court denied.
He then filed a timely notice of appeal and, following a lengthy delay in
obtaining transcripts, he also timely complied with the trial court’s order to
file a Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion in
May of 2016. Herein, Appellant raises two issues for our review, which we
have reordered for ease of disposition:
1. Whether the [t]rial [c]ourt erred when it denied [Appellant’s]
motion to suppress when [Appellant] was seized without
sufficient reasonable suspicion or probable cause?
2. Whether the [t]rial [c]ourt erred in sentencing [Appellant] to a
mandatory minimum sentence under 18 Pa.C.S.A. §
7508(a)(7)(iii) when such mandatory sentences are
unconstitutional under Alleyne v. United States, - U.S. -, 133
S.Ct. 151 (2013); Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc)[;] and Commonwealth v.
Fennell, 101 A.3d 13 (Pa. Super. 2014)?
Appellant’s Brief at 4.
Our standard of reviewing the denial of a suppression motion is as
follows:
In reviewing an order from a suppression court, we consider the
Commonwealth’s evidence, and only so much of the defendant’s
evidence as remains uncontradicted. We accept the suppression
court’s factual findings which are supported by the evidence and
reverse only when the court draws erroneous conclusions from
those facts.
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Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).
Before delving into Appellant’s specific suppression claims, we first
summarize the pertinent evidence presented at the suppression hearing, and
the legal conclusions reached by the trial court based on that evidence.
Detective Ryan Martin testified first for the Commonwealth. He stated
that at approximately 9:40 p.m. on January 22, 2013, a known and reliable
confidential informant (hereinafter, “CI”) called him with information about
“a short white male with short hair” who had been “traveling in the
Northside area of the City of Pittsburgh distributing large amounts of
heroin.” N.T., 11/13/13, at 13.1 Detective Martin testified that he had
received other complaints about “large quantities of narcotics being
distributed on the Northside area of the City of Pittsburgh” within the two
weeks preceding the CI’s call. Id. The CI told him that the short, white
male with short hair was going to be traveling with a white female to the
Giant Eagle on Rodi Road in Penn Hills, which is just outside the City of
Pittsburgh, for the purpose of selling heroin to a white female. Id. at 14,
15. The CI explained that the white male would be driving a “light blue
Chevy” and was going to meet the white, female buyer at the “front
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1
The reliability of the CI in this case is not in dispute. However, we note
that Detective Martin testified that, within the two weeks prior to January
22, 2013, that same CI had provided Detective Martin with information that
led to a seizure of nine bricks (or 450 stamped bags) of heroin and a felony
arrest in an unrelated case. N.T. at 15.
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entrance of the Giant Eagle parking lot.” Id. at 15. That specific shopping
plaza is a high crime area, with “[t]he sale and use of narcotics” being “the
most prevalent type of crime in that area.” Id. at 57.
Based on the CI’s information, Detective Martin and another detective
set up surveillance at the Giant Eagle parking lot. Id. at 16-17. Once there,
the detective received another call from the CI, who stated that the white
male in the light blue Chevrolet would be arriving at the Giant Eagle “[i]n
approximately five minutes.” Id. at 17. Approximately five minutes later,
Detective Martin “observed a light blue Chevy Cobalt pull into the Giant
Eagle parking lot and park in front of the front entrance of the Giant Eagle.”
Id. Inside the car, Detective Martin could see “a white male driver with
short hair,” and “a white female passenger.” Id. At that point, Detective
Martin “radioed the assisting detectives to approach the vehicle.” Id. At the
suppression hearing, Detective Martin identified Appellant as the driver of
the Chevrolet vehicle. Id. at 18.
Detective Brian Burgunder testified that he was one of the officers who
approached Appellant’s vehicle.2 He could not specifically recall if the
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2
Appellant contends that twelve officers approached his car, but the record
does not support that claim. Instead, the evidence demonstrated that there
were as many as twelve officers present at the scene, but only seven of
those officers actually approached Appellant’s vehicle. See N.T. at 36-37,
38-39. More specifically, three officers approached the passenger side
window of the car, while four officers approached the driver’s side window.
Id. at 38-39.
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officers advanced toward the vehicle with their guns drawn, but he testified
that doing so would have been “protocol” in this type of situation. Id. at 46.
Detective Burgunder stated that all the officers who approached the vehicle
had police badges clearly displayed, and he “was verbally telling [Appellant
they were] Pittsburgh Police….” Id. at 47.
Detective Burgunder was the officer who first spoke to Appellant. The
detective testified that he had a “brief” conversation with Appellant “in
normal voice levels” and his gun was not drawn at that point. Id. at 47,
48.3 He testified that the conversation with Appellant went as follows:
[Detective Burgunder]: I explained to [Appellant] that we
believed he was in the area to conduct a narcotics transaction
involving heroin and prescription narcotic pills. At that point[,
Appellant] said that he didn’t have anything on his person. I
subsequently asked him if he would consent to a search of his
person and the vehicle, and he immediately complied.
Id. at 47. The female passenger in Appellant’s vehicle also consented to a
search of her person. Id. at 53. Ultimately, the search revealed 100
Oxycodone pills in Appellant’s pocket, as well as “eight bricks of heroin plus
48 bags, [a] spoon, and a rubber tourniquet” in the female passenger’s
pants. Id.
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3
Detective Burgunder initially claimed that his conversation with Appellant
occurred while Appellant “was still seated in the vehicle.” Id. at 47.
However, on cross-examination, the detective effectively changed his
testimony, acknowledging that he “ordered [Appellant] out of the vehicle,
[Appellant] immediately complied, and then this conversation took place.”
Id. at 50-51. For purposes of our review, we will presume that Appellant
was ordered out of the vehicle prior to his conversation with the detective.
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Based on this evidence, trial court concluded that Appellant was
subjected to an investigative detention that was supported by reasonable
suspicion. Id. at 69. The court emphasized that there was “a known
reliable informant” and “the information [was] corroborated by the
observations of the officers….” Id. at 69. The court also noted that the
location of the detention was known to be a “high drug trafficking area.” Id.
at 70. Therefore, the court concluded that the stop of Appellant was legal
and, because he ultimately consented to the search of his person, that
search was legal, as well. See Trial Court Opinion (TCO), 5/3/16, at 8.
On appeal, Appellant contends that his interaction with police
constituted “a custodial detention for which law enforcement lacked
sufficient probable cause to justify the seizure of his person.” Appellant’s
Brief at 22 (emphasis omitted). Alternatively, Appellant claims that even if
he was only detained for investigation, officers did not have reasonable
suspicion to validate that detention. Finally, Appellant argues that his
consent to search his person “was a product of the illegal detention and was
not independently and voluntarily given.” Id. at 25 (emphasis omitted).
In assessing Appellant’s claims, we are mindful that,
Pennsylvania case law recognizes three categories of interaction
between police officers and citizens. The first is a mere
encounter, which need not be supported by any level of
suspicion. The second is an investigative detention, which must
be supported by reasonable suspicion. This interaction 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. The third category, a custodial detention,
must be supported by probable cause. The police have probable
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cause where the facts and circumstances within the officer's
knowledge are sufficient to warrant a person of reasonable
caution in the belief that an offense has been or is being
committed.
Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012) (internal
citations and quotation marks omitted).
Here, we initially agree with the trial court that Appellant was
subjected to an investigative detention, rather than an arrest. Our Supreme
Court has declared that,
[t]he factors typically considered in determining whether a
detention is investigative or custodial are:
the basis for the detention (the crime suspected and the
grounds for suspicion); the duration of the detention; the
location of the detention (public or private); whether the
suspect was transported against his will (how far, why);
the method of detention; the show, threat or use of force;
and, the investigative methods used to confirm or dispel
suspicions.
In Interest of S.J., 713 A.2d 45, 47 (Pa. 1998) (quoting Commonwealth
v. Gommer, 445 Pa.Super. 571, 581, 665 A.2d 1269, 1274 (1995)
(citations omitted)).
Here, the basis for the detention was a tip from a reliable CI that a
man matching Appellant’s description was travelling to a specific location,
with a white female passenger, in a specific color and make of vehicle, at a
specific time, and for the purpose of selling heroin. Appellant was ultimately
detained in a public parking lot of a grocery store. During that detention, he
was not transported anywhere. Additionally, the evidence indicated that
Appellant’s detention was brief in duration. For instance, Detective
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Burgunder testified that he approached Appellant’s vehicle, immediately
asked Appellant to exit the car, and informed Appellant that he was
suspected of being in the area to sell heroin and prescription pills. Appellant
then denied that he possessed any narcotics and consented to a search of
his person. These facts support that the detective “diligently pursued a
means of investigation that was likely to confirm or dispel [his] suspicions
quickly….” Commonwealth v. Douglass, 539 A.2d 412, 421 (Pa. Super.
1988) (discussing the factors to consider in determining if a detention is “too
long in duration to be justified as an investigative stop”) (citations omitted).
In regard to the factor of whether the officers showed, threatened or
used force, we recognize that seven officers approached Appellant, likely
with their weapons drawn, and Detective Burgunder immediately ordered
him to exit his vehicle. Certainly, these acts constitute a showing of force.
However, this Court concluded in Commonwealth v. Johnson, 849 A.2d
1236 (Pa. Super. 2004), that five officers’ approaching Johnson’s vehicle
with their guns at their sides still constituted an investigative detention, not
an arrest. Id. at 1238. In reaching this decision, we stressed that the
officers did not have their guns pointed at Johnson. Id. at 1239.4 In this
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4
The Johnson panel also noted that the officers’ decision to ready their
weapons when approaching Johnson’s car for the purpose of a criminal
investigation was “prudent and safe[,]” as “[a]n officer approaching a car
cannot see if there is a weapon being held below the level of the car
window.” Johnson, 849 A.2d at 1239.
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case, even if we presume that the seven officers who approached Appellant’s
vehicle had their weapons drawn as ‘protocol,’ there was no evidence
suggesting that they had their weapons pointed at Appellant.
Additionally, both our Supreme Court and this Court have recognized
that ordering a person out of his or her vehicle is indicative of a detention,
but does not necessarily escalate the detention to an arrest. See
Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002)
(listing cases that “have applied [the ‘investigative detention’] standard in
the context of motor vehicle stops during which police have ordered a
motorist or his passengers to disembark”). Here, Detective Burgunder
testified that his weapon was not drawn when he directed Appellant to exit
the vehicle, and he did not threaten Appellant in any manner in ordering him
to do so. N.T. at 48. Moreover, there was no evidence that Appellant was
forcibly removed from the car; rather, the detective testified that Appellant
“immediately complied” with the order to get out. Id. at 51. There was also
no evidence suggesting that Appellant was subjected to force after he
stepped out of the car. For instance, Appellant was not placed in handcuffs,
put into the back of a police car, ordered to lie on the ground, or directed to
place his hands on his head or on the hood of the vehicle.
In sum, the factors outlined in S.J., and this Court’s decision in
Johnson, support the trial court’s decision that Appellant was subjected to
an investigative detention, rather than to a custodial detention.
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Consequently, we must next assess whether there was reasonable suspicion
to support that detention. See Caban, 60 A.3d at 127.
Again, Johnson is instructive, as the facts of that decision closely
mirror those of the present case. In Johnson,
[o]n the date of the arrest, October 2, 2002, Officer DeFrancesco
received information from a confidential informant (C.I.) that a
young, stocky, African–American male would be delivering
marijuana in a blue Oldsmobile on the 6700 block of Market
Street in Upper Darby, PA. Later, Officer DeFrancesco received
more information from the C.I. stating that the time of delivery
would be between 6:00 and 10:00 p.m. The information was
received shortly before 6:00 p.m., and five officers immediately
set up a surveillance. A man fitting the description in a car fitting
the description arrived in the location.
The officers approached the car, with their guns drawn but at
their sides.
Johnson, 849 A.2d at 1237. Ultimately, the Johnson panel held that,
based on the information given by a C.I. who had proven to be
reliable in the past, when a man fitting the description arrived at
the appointed location in a car similar to the one that had been
described by the C.I., the police had reasonable suspicion that
criminal activity was afoot. The officers acted properly by
approaching the car to investigate. Under these facts, they were
permitted to stop [Johnson] for a brief period of detention.
Id.5
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5
We acknowledge that after officers approached Johnson’s car, they
observed a bag of marijuana in his back seat and smelled an odor of
marijuana emanating from his vehicle. See Johnson, 849 A.2d at 1237.
These facts led to Johnson’s arrest, but they did not factor into our Court’s
assessment of the lawfulness of his detention.
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As in Johnson, here, Detective Martin received a tip from a reliable CI
that had provided accurate information just two weeks prior to the
information he supplied about Appellant. Also similar to Johnson, the CI
gave Detective Martin detailed information about the drug that was to be
delivered (in this case, heroin), a physical description of Appellant, and a
general description of his vehicle. Additionally, the CI in this case also
stated that a white, female passenger would be in Appellant’s car, and the
CI gave a more definitive time-frame of Appellant’s arrival than the four-
hour window provided by the CI in Johnson. Specifically, the CI notified
Detective Martin that Appellant would be arriving at the Giant Eagle within
five minutes. Five minutes later, Detective Martin observed a car matching
the one described by the CI, and driven by Appellant, who fit the physical
description provided by the CI. A white female was in the car with
Appellant, which further aligned with the CI’s information. Additionally,
Appellant parked his car at the front entrance of the store, just as the CI
said he would do. Finally, that specific Giant Eagle shopping plaza is a high-
crime area known for narcotics transactions. Based on the totality of these
facts, which mirror - if not exceed - those in Johnson, we conclude that
Detective Martin had reasonable suspicion to order the investigative
detention of Appellant.
Finally, we reject Appellant’s claim that his consent to the search was
involuntary. Notably, Appellant’s argument is grounded on his claim that his
detention was illegal, which is meritless for the reasons stated supra.
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Moreover, the evidence presented at the suppression hearing does not
support a conclusion that Appellant’s consent was coerced. Importantly,
Detective Burgunder testified that after Appellant complied with the order to
get out of the vehicle, the detective and Appellant had a “conversation … in
normal voice levels[,]” during which Appellant was informed that he was
suspected of being “in the area to conduct a narcotics transaction….” N.T. at
47, 48. When Appellant responded “that he didn’t have anything on his
person[,]” the detective “asked [Appellant] if he would consent to a search
of his person and the vehicle, [and Appellant] immediately complied.” Id. at
47. Detective Burgunder testified that there were “absolutely” no threats
made to Appellant before Appellant consented to that search. Id. Thus,
there is no basis on which to conclude that Appellant’s consent, which
followed his lawful detention, was involuntary.
For all of these reasons, we conclude that the trial court did not err in
determining that Appellant was subjected to an investigative detention that
was supported by reasonable suspicion, and that he voluntarily consented to
the search of his person and the vehicle. Accordingly, Appellant’s challenge
to the court’s denial of his motion to suppress is meritless.
Next, Appellant challenges the legality of a five-year mandatory
minimum sentence, imposed pursuant to 18 Pa.C.S. § 7508(a)(7)(iii) (based
on the aggregate weight of the drugs he possessed with intent to deliver).
Appellant contends that this sentence is now illegal under the United
Supreme Court’s ruling in Alleyne, and this Court’s decisions in Newman
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and Fennell.6 The Commonwealth and the trial court both agree with
Appellant, as do we. See TCO at 5-6; Commonwealth’s Brief at 6. Because
section 7508 has been invalidated in the wake of Alleyne, and Appellant is
currently appealing from his judgment of sentence, we vacate the illegal,
mandatory minimum term imposed under section 7508, and remand for
resentencing for that offense.7
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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6
See Alleyne, 133 S.Ct. at 2163 (holding that “facts that increase
mandatory minimum sentences must be submitted to the jury” and found
beyond a reasonable doubt); Newman, 99 A.3d at 97-98, 101-102 (holding
that the ‘proof at sentencing’ provision contained in 42 Pa.C.S. § 9712.1,
and many other mandatory minimum sentencing statutes in this
Commonwealth, violates Alleyne and is not severable from the non-
offending portions of the statute, thus rendering the statute unconstitutional
in its entirety); Fennell, 105 A.3d at 20 (concluding that 18 Pa.C.S. § 7508
is unconstitutional in its entirety under Alleyne and Newman).
7
We conclude that our disposition does not upset the court’s overall
sentencing scheme, so we need not vacate Appellant’s other sentences. See
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (stating
that if our disposition upsets the overall sentencing scheme of the trial court,
we must remand so that the court can restructure its sentence plan).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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