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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE SANDERS :
:
Appellant : No. 1610 EDA 2016
Appeal from the Judgment of Sentence May 20, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008444-2015
BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 21, 2017
Wayne Sanders appeals from the judgment of sentence entered on May
20, 2016, in the Philadelphia County Court of Common Pleas. On March 21,
2016, the trial court convicted Sanders of possession of a controlled
substance, possession of marijuana, and two counts of violating the Uniform
Firearms Act.1 The court sentenced Sanders to a term of six to 23 months’
incarceration with immediate parole, followed by three years’ probation. On
appeal, Sanders argues the trial court erred in denying his motion to suppress
physical evidence and his post-arrest written statement. See Sanders’ Brief
____________________________________________
Former Justice specially assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(16) and (a)(31), and 18 Pa.C.S. §§ 6106(a)(1) and
6108, respectively.
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at 4. After a thorough review of the submissions by the parties, the certified
record, and relevant law, we affirm the judgment of sentence.
The trial court set forth the facts the case as follows:
On or about June 3, 2015, Police Officer Jonathan Switaj went to
the corner store located at 3154 North Broad Street in Philadelphia
at about 5:15 p.m. to do a security check, due to numerous
complaints about narcotics sales in the vicinity. When Officer
Switaj entered the store, he saw [Sanders] and another black
male facing each other, standing by the cash register; the other
male had US currency in his right hand, and [Sanders] had a
prescription pill bottle in his left hand with different colored pills
in it, which the officer could clearly see through the bottom of the
bottle. Because the different colored pills were in one bottle, the
officer believed he was witnessing a potential drug transaction.
The officer asked [Sanders] whether he had “served” (i.e. sold
narcotics to) the other male yet, and [Sanders], who appeared
surprised that a police officer was in the store, responded that he
“didn’t serve him yet.” The officer asked [Sanders] for the pill
bottle, which [Sanders] gave him, and said those were his pills in
the bottle, and the name on the bottle was that of [Sanders].
Officer Switaj asked [Sanders] to sit down on some crates while
he further investigated the several different types of pills found in
the bottle, and [Sanders] appeared to be breathing very heavily
and looking back and forth. The officer then asked [Sanders] to
stand up and handcuffed him, for the officer’s safety, because
Officer Switaj was the only police officer in the store, and although
he had called for back-up, they had not yet arrived. [Sanders]
was not under arrest at that time. Officer Switaj was
investigating.
Officer Switaj then took [Sanders] outside to his police car,
because he felt that, with numerous people coming in and out of
the store, and no other police officers, it was safer to go outside
to the patrol car. As he walked [Sanders] to the police car, holding
his arm, [Sanders] attempted to yank the officer’s arm away so
he could run away. The officer told [Sanders] that he wasn’t under
arrest, but [Sanders] said “I’m scared. I’m scared.” At that point,
Officer Switaj walks [Sanders] to the police car, at which time
police back-up arrives, and Officer Switaj proceeds to conduct an
open-hand pat down on [Sanders’] outer layer of clothing. The
officer testified that, although [Sanders] was not under arrest at
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this time, he did a pat-down for weapons and narcotics, as he does
for anyone he places in the back of the police vehicle. While
conducting the pat-down, the officer felt a hard object in
[Sanders’] front left pocket in the shape of a firearm, which he
removed from [Sanders’] pants pocket. After recovering the
firearm, [Sanders] was then placed under arrest. The officer
continued to do a pat-down of [Sanders], and recovered five small
baggies containing a green leafy substance.
After Officer Switaj placed [Sanders] into the back seat of
the patrol car, and attempted to buckle him in for safety reasons,
[Sanders] started hitting his head on the back of the metal divider,
stating “I can’t go back to jail, I can’t go back to jail”, whereupon
[Sanders] was transported to the hospital to treat a large gash on
the top of his head.
Trial Court Opinion, 7/22/2016, at 1-2 (record citations omitted).
Sanders was charged with possession of a controlled substance,
possession of marijuana, firearms not to be carried without a license, and
carrying firearms in public in Philadelphia. He filed a motion to suppress on
December 23, 2015, alleging the officer lacked probable cause to seize him,
and therefore, any evidence recovered or statements made after the improper
seizure should be suppressed. A hearing was held on that motion on February
8, 2016. That same day, the court entered an order, denying Sanders’ motion.
On March 21, 2016, the trial court convicted Sanders of all charges. On May
20, 2016, the court sentenced him to a term of six to 23 months’ incarceration
for the firearms not to be carried without a license count, followed by three
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years’ probation for the remaining VUFA violation.2 This timely appeal
followed.3
In his first argument, Sanders contends the “warrantless seizure, and
subsequent search, of a pill bottle violated” his constitutional rights. Sanders’
Brief at 10. Specifically, he states the “plain view” exception to the warrant
requirement does not apply to his case because “the incriminating nature of
the contents of the pill bottle was not immediately apparent to the police
officer” where the officer “did not relate his experience as a police officer to
why anything ‘struck [him as] odd’” regarding the pill bottle. Id. at 12.
(citation omitted). Moreover, he argues the officer’s explanation regarding
the contents of the pill bottle, as in seeing different pills in one bottle as
opposed to multiple bottles, “provides no objective basis upon which the [t]rial
[c]ourt could … gauge why the incriminating nature of the items was
immediately apparent to the officer.” Id. at 13.
Our standard of review is well-settled:
[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
____________________________________________
2
The court did not impose any further penalty on the remaining claims.
3
On June 2, 2016, the trial court ordered Sanders to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Sanders
filed a concise statement on June 7, 2016. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on July 22, 2016.
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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. Mason, 130 A.3d 148, 151–152 (Pa. Super. 2015)
(quotation omitted), appeal denied, 138 A.3d 3 (Pa. 2016).
Both the Fourth Amendment to the United States Constitution and
Article I, § 8 of the Pennsylvania Constitution protect the people
from unreasonable searches and seizures. In the Interest of
D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (Pa. 2001). The Fourth
Amendment and Article I, § 8 have long been interpreted to
protect the people from unreasonable government intrusions into
their privacy. United States v. Chadwick, 433 U.S. 1, 7, 97 S.
Ct. 2476, 53 L. Ed. 2d 538 (1977); Commonwealth v. Shaw,
476 Pa. 543, 383 A.2d 496, 499 (Pa. 1978). “The reasonableness
of a governmental intrusion varies with the degree of privacy
legitimately expected and the nature of the governmental
intrusion.” Shaw, at 499 (collecting cases).
Commonwealth v. McCree, 924 A.2d 621, 626 (Pa. 2007). There are three
types of interactions between citizens and police officers, which require
different levels of validation based upon the nature of the interaction.
These categories include (1) a mere encounter, (2) an
investigative detention, and (3) custodial detentions. The first of
these, 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 to respond. The second, an
“investigative detention” must be supported by reasonable
suspicion; it subjects a suspect to a stop and a period of detention,
but does not involve such coercive conditions as to constitute the
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functional equivalent of an arrest. Finally, an arrest or “custodial
detention” must be supported by probable cause.
Commonwealth v. Baldwin, 147 A.3d 1200, 1202-1203 (Pa. Super. 2016)
(citation omitted).4
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4
For purposes of this appeal, which will be discussed in detail infra, we
note:
“The Fourth Amendment permits brief investigative stops ... when
a law enforcement officer has a particularized and objective basis
for suspecting the particular person stopped of criminal activity.
Navarette v. California, U.S. , 134 S.Ct. 1683, 1687, 188
L.Ed.2d 680 (2014). It is axiomatic that to establish reasonable
suspicion, an officer “must be able to articulate something more
than an inchoate and unparticularized suspicion or hunch.”
United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104
L.Ed.2d 1 (1989) (internal quotation marks and citation omitted).
Unlike the other amendments pertaining to criminal proceedings,
the Fourth Amendment is unique as it has standards built into its
text, i.e., reasonableness and probable cause. See generally
U.S. Const. amend. IV. However, as the Supreme Court has long
recognized, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968) is an exception to the textual standard of probable
cause. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75
L.Ed.2d 229 (1983). A suppression court is required to “take[ ]
into account the totality of the circumstances—the whole picture.”
Navarette, supra (internal quotation marks and citation
omitted). When conducting a Terry analysis, it is incumbent on
the suppression court to inquire, based on all of the circumstances
known to the officer ex ante, whether an objective basis for the
seizure was present. Adams v. Williams, 407 U.S. 143, 146, 92
S.Ct. 1921, 32 L.Ed.2d 612 (1972). In addition, an officer may
conduct a limited search, i.e., a pat-down of the person stopped,
if the officer possesses reasonable suspicion that the person
stopped may be armed and dangerous. United States v. Place,
462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)
(citation omitted).
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Moreover, we are guided by the following:
Warrantless searches or seizures are presumptively unreasonable
subject to certain established exceptions. One exception, the
plain view doctrine, permits the warrantless seizure of an object
when: (1) an officer views the object from a lawful vantage point;
(2) it is immediately apparent to him that the object is
incriminating; and (3) the officer has a lawful right of access to
the object.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)
(emphasis added), appeal denied, 106 A.3d 724 (Pa. 2014).
In determining whether the incriminating nature of an object [is]
immediately apparent to the police officer, we look to the totality
of the circumstances. An officer can never be one hundred
percent certain that a substance in plain view is incriminating, but
his belief must be supported by probable cause. In viewing the
totality of the circumstances, the officer’s training and experience
should be considered.
Commonwealth v. Miller, 56 A.3d 424, 430 (Pa. Super. 2012) (citations and
quotation marks omitted).5
Here, the trial court found the following:
Officer Switaj was lawfully on the premises where he saw the pill
bottles in [Sanders’] hand, and the officer’s uncontradicted
testimony was that he was able to view the pill bottle with different
colored pills in the same bottle, engaging with another male who
had US currency in his hand, which led the officer to believe he
was witnessing a drug transaction. These facts were sufficient to
at least allow the officer to have reasonable suspicion to
____________________________________________
Commonwealth v. Carter, 105 A.3d 765, 768-769 (Pa. Super. 2014) (en
banc) (footnote omitted), appeal denied, 105 A.3d 765 (Pa. 2014).
5
“Immediately apparent” has been defined in plain feel exception cases,
which are analogous to plain view exception matters, as that which “the officer
readily perceives, without further exploration or searching[.]”
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000).
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investigate. There is no testimony that the officer actually opened
the pill bottle. Thus, [Sanders’] claim in this regard is without
merit.
Trial Court Opinion, 7/22/2016, at 3-4. The testimony of Officer Switaj
supports the trial court’s conclusion.
With respect to three-part test of the plain view doctrine, we note
Sanders only attacks the second prong in his argument, that is, whether it
was immediately apparent to the officer that the object is incriminating. See
Sanders’ Brief at 11-13. Accordingly, we will confine our analysis to that
prong. We find the incriminating nature of the bottle of pills was immediately
apparent to the officer based on the totality of the circumstances. As noted
above, “[a]n officer can never be one hundred percent certain that a substance
in plain view is incriminating, but his belief must be supported by probable
cause. In viewing the totality of the circumstances, the officer’s training and
experience should be considered.” Miller, 56 A.3d at 430. Here, the officer
testified that he was in a high crime area, and that narcotics sales regularly
occurred inside and outside the store. Specifically, with respect to the case
at hand, he observed an unidentified male holding cash and Sanders with a
pill bottle in his hand. It was obvious to Officer Switaj that there were different
kinds of pills in the bottle, and the officer testified that this seemed unusual
to him, explaining that it is generally one set of pills in a bottle and then
another kind in a separate container, not all mixed together. Based on his
experience, the officer indicated he believed a potential transaction was
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transpiring. Moreover, when Officer Switaj asked Sanders if he had “served”
or sold drugs to the unidentified male, Sanders replied that he did not “serve”
the man “yet.” N.T., 2/8/2016, at 13.
The totality of the circumstances, including the officer’s observations
and Sanders’ statement, established the second prong of the plain view
doctrine, that it was immediately apparent to Officer Switaj that based on
probable cause, the bottle was incriminating. Furthermore, as for Sanders’
argument regarding Officer Switaj’s experience and training, we note he is
focusing on evidence the Commonwealth did not explicitly present, rather than
the evidence the Commonwealth did, indeed, set forth. It merits mention that
Sanders cites no law for the suggestion that an officer must observe a certain
number of transactions before he can conclude that a pill bottle containing
numerous kinds of pills is apparently incriminating. Likewise, our own review
has failed to reveal any such case law. Accordingly, we discern no abuse of
discretion on the part of the trial court in finding Officer Switaj’s testimony
credible. Therefore, the seizure of the pill bottle was proper pursuant to the
plain view doctrine.
Separately, we note that based on the totality of the circumstances as
set forth above, Officer Switaj conducted a legal investigatory detention of
Sanders that was supported by reasonable suspicion. He observed what he
believed to be a drug transaction taking place and that Sanders was involved
in the illicit sale. Therefore, he was justified in asking Sanders about the
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bottle, after which Sanders voluntarily consented to giving him the container.
See N.T., 2/8/2016, at 14.
Next, Sanders argues Officer Switaj did not possess reasonable
suspicion or probable cause to justify the pat-down or frisk of his person.
Sanders’ Brief at 14. Specifically, he states the officer “did not point to specific
facts, which led him to reasonably infer that Wayne Sanders was armed and
dangerous.” Id. Sanders alleges the following:
The police officer’s patdown of Wayne Sanders was not
justified. The officer did not articulate specific facts, which might
suggest that Wayne Sanders was armed and dangerous.
[Sanders] did not attempt to grab the officer’s gun. The officer
did not observe a bulge or object in the shape of a gun in
[Sanders’] clothing. Rather, Officer Switaj explained, “Anybody
who sits in the back of my patrol vehicle, under arrest, I’m taking
them to the bus stop, I pat him down for my safety because they
are sitting behind me…” This general statement was [an]
insufficient justification for the patdown.
…
First, it was not necessary for the officer to place [Sanders] in the
patrol car, because, as Officer Switaj walked [Sanders] to the car,
“Another officer arrives on the scene.” Thus, the reason for
placing Wayne Sanders into the patrol car – the fact that Officer
Switaj was alone – was no longer an issue. Accordingly, because
there was no longer a need to place [Sanders] into the car, there
was no reason for the officer to conduct a patdown. Next, at the
time of the patdown, there was no reason for Officer Switaj to
think that Wayne Sanders would be sitting behind him. When the
officer patted [Sanders] down, he did not intend to transport
[Sanders] to another location. Also, Wayne Sanders was not
under arrest. Therefore, [Sanders] would not be sitting behind
Officer Switaj.
Id. at 18-19 (citations and record citations omitted).
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Keeping in mind our standard of review and case law regarding search
and seizure as provided above, we are guided by the following regarding
frisks:
An overt threat by the suspect or clear showing of a weapon is not
required for a frisk. It is well-established that “[t]he officer need
not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger.”
Commonwealth v. Mack, 953 A.2d 587, 591 (Pa. Super. 2008) (citations
omitted). We also note the following: “[T]he mere fact that the trooper
reversed the procedure, conducting the search before the arrest, did not
render it illegal as long as probable cause to arrest existed at the time of
search .... Any other holding would, without rational basis, exalt form over
substance.” Commonwealth v. Rehmeyer, 502 A.2d 1332, 1335 (Pa.
Super. 1985), appeal denied, 531 A.2d 780 (Pa. 1987), quoting United
States v. Jenkins, 496 F.2d 57, 73 (2d Cir.1974), cert. denied, 420 U.S. 925
(1975) (emphasis in original). See also Commonwealth v. Merriwether,
555 A.2d 906 (Pa. Super. 1989); Commonwealth v. Canning, 587 A.2d 330
(Pa. Super. 1991).
Turning to the present matter, the trial court found the following:
Here, Officer Switaj was investigating complaints of drug
trafficking at a specific location, and upon his arrival, observed
what he believed to be a drug transaction between [Sanders] and
another person, and proceeded to investigate. [Sanders’] actions
during that investigation - heavy breathing and looking back and
forth in a way that aroused the officer’s suspicion -- led to his
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being handcuffed, for the safety of the officer and the others in
the store.
The issue of whether a Fourth Amendment violation has
occurred turns on an objective assessment of the officer’s action
in light of the facts and circumstance confronting him at the time,
and not the officer’s actual state of mind at the time the
challenged action was taken; the issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger. Commonwealth v.
Garza, 2016 WL 212493 (Pa. Super. 2016). The sole justification
of a Terry search is the protection of the police and others nearby,
and such protective search must be strictly limited to that which
is necessary for discovery of weapons which might be used to
harm the officer or others nearby, and the purpose of the search
is therefore to allow the police officer to pursue his investigation
without fear of violence. Commonwealth v. Guillespie, 745 A.2d
654 (Pa. Super. 2000).
Here, based upon [Sanders’] actions of suspected drug
dealing, acting nervous and attempting to escape, the officer had
reasonable suspicion to investigate further and was justified in
handcuffing [Sanders] and subsequently placing him in the police
car, for officer safety. Upon that investigation, and prior to placing
him in the police car, he patted him down for officer safety and
discovered the firearm, and subsequently, other contraband.
Such a pat-down is permissible for officer safety. See,
Commonwealth v. Rehmeyer, 349 Pa.Super. 176, 502 A.2d 1332
(1985), alloc. denied, 516 Pa. 613, 531 A.2d 780 (1987) (Police
officer who properly proposed to take a citizen home in his patrol
car could subject that citizen to a pat-down search for weapons,
even where there is no reason to believe that the citizen is armed,
and the individual is not under arrest, although the officer has
probable cause to arrest). If the officer determines that a
reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger, the
officer may conduct a protective pat-down. Commonwealth v.
Rehmeyer, id., citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1967), 392 U.S. at 27, 88 S.Ct. at 1883. The officer
is empowered to neutralize the danger posed by the party with
whom he is dealing, and a reasonably prudent man would believe
that his safety was in jeopardy if, once behind the wheel of the
police car, [Sanders] could possibly enter the patrol car with a
deadly weapon. Commonwealth v. Rehmeyer, 349 Pa.Super, at
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pp. 183-184. Accord, Commonwealth v. Merriwether, 382
Pa.Super. 411, 555 A.2d 906 (1989) (Police could conduct a
protective pat-down search of defendant, whom they had
probable cause to arrest for a narcotics violation, and weapon
seized as a result of that search was admissible in prosecution for
violation of Uniform Firearms Act); Commonwealth v. Romero-
Diaz, 2014 WL 10788783 (Pa. Super.) (For their own safety, the
Troopers were entitled to perform a limited frisk for weapons
before securing Romero-Diaz and his passenger in their vehicle
for transport. Thus, the Troopers had lawful access to pursue a
plain feel pat down of Romero-Diaz, at which point Trooper Hope
felt a “bulge” that was revealed to be his keys. The Troopers’
search ended at that point, and was “strictly limited to that which
is necessary for the discovery of weapons which might be used to
harm the officer or others nearby.)
Trial Court Opinion, 7/22/2016, at 4-6.
We agree with the trial court based on the totality of the circumstances
and in light of Mack, supra, and Rehmeyer, supra. After Officer Switaj
detained Sanders and asked him to sit down while he called for backup, the
officer noticed that Sanders was breathing very heavily and was looking back
and forth. N.T., 2/8/2016, at 15-16. The officer indicated Sanders had
attempted to flee at one point. Id. at 18. Officer Switaj then stated he was
walking Sanders over to his patrol car and had opened the door when his
backup showed up. Id. Officer Switaj conducted an open hand pat-down of
Sanders’ person. Id. at 19-20. The officer testified he patted Sanders down
“[b]ecause [he] was going to place him inside the back of his vehicle.” Id. at
19. On cross-examination, he also gave the following reason: “Anybody who
sits in the back of my patrol vehicle under arrest, I’m taking them to the bus
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stop, I pat[ted] him down for my safety because they’re sitting behind me,
cuffed or not cuffed.” Id. at 32.
We emphasize that there were patrons inside and outside of the store,
Officer Switaj had just observed what he believed was a drug transaction in
process, Sanders was acting in a nervous manner, and he had attempted to
flee.6 The fact that the backup officer had arrived while Officer Switaj was in
the midst of his investigative procedure, specifically while he was placing
Sanders in the police car, does not render his subsequent actions illegal.7
Moreover, in accordance with Rehmeyer, supra, because Officer Switaj
possessed probable cause as determined in the first issue, he could properly
pat-down Sanders, even though he was not contemporaneously effectuating
an arrest. Accordingly, Sanders’ second argument fails.
Lastly, Sanders argues that his statement was the “fruit of the poisonous
tree” and therefore, the trial court erred in failing to suppress it. Sanders’
Brief at 19-20. A review of the record reveals that Sanders did not include
this issue in his concise statement. See Sanders’ Statement of Matter
Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 6/7/2016. It is well-
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6
See Commonwealth v. Legg, 392 A.2d 801, 803 (Pa. Super. 1978)
(finding flight alone not sufficient, but flight coupled with additional facts
pointing to defendant’s guilt may establish probable cause).
7
We may have reached a different conclusion if the backup officer had arrived
when Officer Switaj was in the store with Sanders or at the moment he had
brought Sanders out of the store.
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settled that such a failure results in waiver. See Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”). Accordingly, we need
not address Sanders’ final argument further.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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