J-S38034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
HARRY ECHEVAVIA
Appellant No. 3001 EDA 2016
Appeal from the Judgment of Sentence August 30, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0013153-2015
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 25, 2017
Appellant, Harry Echevavia, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas after he was
found guilty of possession with intent to deliver1 and knowing and intentional
possession.2 Appellant challenges the denial of his motion to suppress
physical evidence. We affirm.
The trial court summarized the facts and procedural posture of this
case as follows:
At the suppression hearing, Philadelphia Police Officer
[Joseph] McCauley testified that on November 23, 2015 at
5:10 p.m. he and his partner, Officer [Patrick] Banning,
were assigned to an “overtime detail specially to target
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
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open air drug sales” in addition to “part one . . . crimes”
which included “shooting, robberies, rapes, burglaries, car
thefts [and] stolen autos.” [Officer McCauley] indicated
that his tour of duty took him to the 200 block of East
Stella Street which is “considered the highest drug area” in
Philadelphia. Officer McCauley was not conducting
surveillance on [Appellant] on the night in question.
On the night in question, [Officers] McCauley and
Banning were patrolling in a stealth marked vehicle with no
dome lights and subdued decals. [Officer] McCauley was
operating the police vehicle and used a “stealth manner” to
turn the wrong way onto Stella Street, a one-way street.
From 40 to 60 feet away, [Officer] McCauley observed
[Appellant] engaged in what he believed to be a drug sale.
The police vehicle traveled 10 to 15 miles per hour and did
not have its headlights illuminated as it traveled down
Stella Street.
After [Officer] McCauley observed the suspected drug
sale, [Officers] McCauley and Banning immediately exited
the vehicle next to [Appellant] and the buyer. [Both
officers were in full uniform.] At this point, [Appellant]
dropped fourteen blue packets, consistent with heroin
packaging, onto the highway. [Officer] McCauley then
placed [Appellant] under arrest.
Upon cross examination, [Officer] McCauley reiterated
that he was out of the police vehicle when [Appellant]
dropped the items to the ground. Further, [Officer]
McCauley testified that [Appellant] dropped the packets
after he looked in the direction of [Officers] McCauley and
Banning.
Trial Ct. Op., 11/9/16, at 2-3 (record citations and footnote omitted).
On February 12, 2016, Appellant filed a motion to suppress, alleging
he was stopped without reasonable suspicion and arrested without probable
cause. Following a hearing on April 29, 2016, the trial court denied the
suppression motion and concluded that Appellant was not seized when he
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abandoned the narcotics. See N.T., 4/29/16, at 61. Appellant immediately
proceeded to a nonjury trial at which he was found guilty of possession and
possession with intent to deliver a controlled substance. On August 30,
2016, the trial court sentenced Appellant to one and one half to three years’
imprisonment for possession with intent to deliver.
Appellant timely appealed and complied with the trial court’s order to
submit a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
The trial court filed a responsive opinion and concluded that “no coercion
took place before [Appellant] voluntarily abandoned the heroin packets, and
the recovery of the abandoned heroin packets constituted sufficient probable
cause to arrest [Appellant].” Trial Ct. Op. at 10. This appeal followed.
Appellant presents the following question for review:
Did not the trial court err in denying the motion to
suppress physical evidence discarded by [A]ppellant where
it was forcibly abandoned after an illegal stop made
without probable cause in conflict with the Pennsylvania
and United States Constitutions?
Appellant’s Brief at 3.
Appellant argues he was subject to an investigative detention without
reasonable suspicion when the police officers exited their vehicle next to
him. Appellant asserts a detention arose when “the officers were in uniform
in a marked car, going down the wrong way of a one way street . . . [and]
pulled up directly adjacent to [him].” Id. at 9. Thus, Appellant contends he
abandoned the heroin during an unlawful seizure and that the trial court
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erred in refusing to suppress the physical evidence against him. See id.
(discussing Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996)). We
disagree.
Our standard of review is as follows:
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, 526-27 (Pa. Super. 2015)
(citation omitted), appeal denied, 135 A.3d 584 (Pa. 2016).
In Pennsylvania, interactions between the police and
members of the public are divided into three categories: 1)
mere encounters, which are characterized by the fact that
the suspect has no official compulsion to stop or respond
to the police, and need not be supported by any level of
suspicion; 2) investigative detentions, in which suspects
are required to stop and submit to a period of detention . .
. and must be supported by reasonable suspicion; and 3)
arrests, or custodial detentions, which must be supported
by probable cause. If a suspect is subjected to an
investigative detention that is not supported by reasonable
suspicion, and the suspect abandons a piece of evidence
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that is later recovered by the police, that evidence
generally ought to be suppressed.
Commonwealth v. Astillero, 39 A.3d 353, 357-58 (Pa. Super. 2012)
(citations omitted).
“To determine if an interaction rises to the level of an investigative
detention . . . the court must examine all the circumstances and determine
whether police action would have made a reasonable person believe he was
not free to go and was subject to the officer’s orders.” Commonwealth v.
Guzman, 44 A.3d 688, 693 (Pa. Super. 2012) (citation and quotation marks
omitted). Factors relevant to this determination include “the threatening
presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone
of voice indicating that compliance with the officer’s request might be
compelled.” Commonwealth v. Guess, 53 A.3d 895, 900 (Pa. Super.
2012) (citation omitted).
In Commonwealth v. Byrd, 987 A.2d 786 (Pa. Super. 2009), a
caravan of marked police vehicles drove down the wrong way of a one-way
street and approached the defendant. Id. at 788. The officers drove at a
low speed and did not activate their lights or sirens. Id. An officer in the
second or third vehicle in the caravan was fifty to sixty feet from the
defendant when he observed the defendant discard an item under a parked
car. Id. The officer detained the defendant and recovered a handgun from
underneath the parked car. Id. The trial court granted the defendant’s
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suppression motion, determining that the “caravan of three to four police
cars driving the wrong way down a one-way street . . . is enough of a show
of force to rise to forced abandonment.” Id. at 789 (citation omitted). The
Commonwealth appealed.
The Byrd Court reversed, concluding that the defendant voluntarily
abandoned the handgun during a mere encounter. Id. at 794. The Court
emphasized that there was “no indication that the cruisers’ lights or sirens
were activated[,] and the cruisers were not traveling at high speed.” Id. at
793. Additionally, there was “no evidence that the police showed any
interest in [the defendant] or made any statements to him prior to [the
defendant] discarding the weapon.” Id. (citation omitted).
In Guess, a police detective in plain clothes and an unmarked car was
investigating a report of an attempted burglary at an apartment complex.
Guess, 53 A.3d at 898. While uniformed officers entered the apartment
complex, the detective remained in the parking lot, where he observed the
defendant and another male emerge from between two of the apartment
buildings. Id. The males matched the description of the suspects’ race and
clothes. Id. The detective drove his unmarked vehicle to the defendant,
identified himself as a police officer, and asked the defendant and his cohort
questions about their identities and residence. Id. The detective then got
out of his vehicle and asked to speak with them. Id. During this
interaction, the defendant dropped a credit card, which did not belong to
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him. Id. The detective thereafter patted the defendant down and recovered
further evidence of a burglary. Id. Following his conviction, the defendant
filed a Post Conviction Relief Act3 petition, which asserted, inter alia, that
trial counsel was ineffective for failing to seek suppression of the evidence
against him. Id. at 899. The PCRA court denied the petition, and the
defendant appealed. Id.
The Guess Court affirmed concluding that Appellant’s underlying
suppression claim lacked arguable merit. Id. at 902. Specifically we
concluded that “the initial approach and questioning by [the detective] was a
mere encounter.” Id. at 901. We noted that the detective approached the
defendant alone, he did not verbally command the defendant to stop, and he
did not obstruct the defendant’s movement. Id. We further noted the
absence of any circumstances that would indicate a seizure, such as the
threatening presence of several officers, the display of a weapon, the
physical touching of the citizen, or the use of strong language or tone of
voice. Id. at 900; see also Commonwealth v. Riley, 715 A.2d 1131,
1135-36 (Pa. Super. 1998) (concluding mere encounter occurred where
arresting officer, who wore blue jeans, windbreaker and T-shirt bearing
police emblem and unit name on the back, pulled unmarked vehicle next to
defendant and exited vehicle).
3
42 Pa.C.S. §§ 9541-9546.
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Instantly, the officers drove down the wrong way of a one-way street
towards Appellant. However, this fact did not amount to a detention. See
Byrd, 987 A.2d at 788. Moreover, although the officers pulled their
“stealth-marked” vehicle next to Appellant, they did so without impeding his
movement or issuing a signal for him to stop. See Guess, 53 A.3d at 901;
Byrd, 987 A.2d at 788. Lastly, although the officers exited the vehicle in full
uniform, they did not command Appellant to stop or ask him any questions
before he abandoned the contraband. See Guess, 53 A.3d at 898, 901.
Indeed, there is no indication in the record that the officers spoke to
Appellant before he abandoned the contraband. We conclude that the
totality of the circumstances presented in this case was not as intrusive as
those discussed in Byrd or Guess.4 Therefore, we discern no basis to
disturb the trial court’s conclusion that Appellant abandoned the contraband
during a mere encounter.5 See Jones, 121 A.3d at 526-27.
Judgment of sentence affirmed.
4
Appellant cites no authority for the proposition that the totality of the
circumstances of this case constitutes a seizure.
5
In any event, we discern no merit to Appellant’s contention that the
officers lacked reasonable suspicion to believe that Appellant had engaged in
a narcotics transaction. See Commonwealth v. Thompson, 985 A.2d
928, 936-37 (Pa. 2009) (concluding probable cause existed to arrest
defendant after experienced narcotics officer observed exchange of currency
for small object and Commonwealth established sufficient nexus between
officer’s experience, his observations, and his belief that he witnessed a drug
transaction).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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