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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KHYREE GARDENHIRE
Appellant No. 1598 WDA 2016
Appeal from the Judgment of Sentence September 27, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003073-2016
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 12, 2017
Khyree Gardenhire appeals from the September 27, 2016 judgment of
sentence of three to six months imprisonment imposed following his bench-
trial convictions for possession of a controlled substance with intent to
deliver (“PWID”) and possession of a controlled substance. We affirm.
The trial court succinctly summarized the facts adduced at the
suppression hearing as follows:
[At approximately 7:00 p.m.] on November 17, 2015, Detective
Joseph Brown, and his partner, Detective Robinson, entered an
establishment known as Red's [Ringside Café] on Warrington
Avenue, Pittsburgh, PA, to apprehend a suspect wanted under an
active arrest warrant and who fit the description given by
another detective. (N.T., [9/27/16, at] 5) Upon entering,
Detective Brown observed two males sitting next to each other
within several feet of the entrance of the door. ([Id. at] 5) One
male fit the description for the arrest warrant, and the other
male was Appellant who was wearing a ski mask [covering his
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face]. ([Id.]) Once the detectives approached the men, the man
who fit the arrest warrant description spontaneously uttered, "I
have a gun[.]" ([Id. at 5-6]). Thereafter, Detective Robinson
began to frisk [that] suspect for firearms.
At that point, Detective Brown observed Appellant, with his
hand in his pocket, clenching on an unknown object. ([Id. at] 6)
Furthermore, Detective Brown testified to the fact that the
establishment is located in a high-crime area, for it was well
known that the establishment had a history of violence. ([Id. at]
7) Due to this circumstance and because Detective Brown feared
for his safety, he said to Appellant, "Sir, get your hand out of
your pocket. Take your hands out. Let me see your hands." ([Id.
at] 6) Appellant then removed his left hand from his pocket[,
holding “89 stamp bags of heroin.”] ([Id].) At that time,
Detective Brown, who had experience with the packaging and
appearance of heroin, believed Appellant possessed heroin.
([Id.]) Appellant was then handcuffed and placed under arrest
by Detective Brown. [Id. at 7].
Trial Court Opinion, 6/16/17, at 1 (footnote omitted).
The trial court made credibility determinations in favor of Detective
Brown regarding his account of the interaction with Appellant, found that the
interdiction was constitutional, and denied Appellant’s motion to suppress
the physical evidence of the heroin. Following a non-jury trial, Appellant
was convicted of possession of a controlled substance with intent to deliver
and possession of a controlled substance. Appellant waived the presentence
investigation, and the trial court immediately imposed the above-referenced
sentence of three to six months imprisonment for PWID. No further penalty
was imposed on the possession conviction. This timely appeal followed.
Appellant complied with the trial court’s directive to file a concise
statement of matters complained of appeal pursuant to Pa.R.A.P. 1925(b).
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While the Rule 1925(b) statement leveled four interrelated issues
challenging the trial court’s denial of his motion to suppress the physical
evidence, Appellant condensed these claims into one question on appeal,
“Whether the trial court erred in denying appellant’s motion to suppress.”
Appellant’s brief at 3.
Our standard of review when reviewing an order denying a
suppression motion is well settled.
An appellate court may consider only the Commonwealth's
evidence 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 record supports the factual findings of
the trial court, the appellate court is bound by those facts and
may reverse only if the legal conclusions drawn therefrom are in
error. However, it is also well settled that the appellate court is
not bound by the suppression court's conclusions of law.
Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 663-64 (Pa.Super.
2015) (citations omitted). Further, “[w]ith respect to factual findings, . . . it
is the sole province of the suppression court to weigh the credibility of the
witnesses[, and] the suppression court judge is entitled to believe all, part or
none of the evidence presented.” Id. at 664 (quoting Commonwealth v.
Benton, 655 A.2d 1030, 1032 (Pa. 1995)). Our scope of review is limited to
the evidence presented at the suppression hearing. In re L.J., 79 A.3d
1073, 1080 (Pa. 2013).
At the outset, we review the three categories of police interdiction and
the corresponding levels of suspicion required to support those interactions.
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The first of these is 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 respond.
The second, an “investigative detention” must be supported by
reasonable suspicion; it subjects a suspect to a stop and period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of arrest. Finally, an arrest or
“custodial detention” must be supported by probable cause.
Commonwealth v. Williams, 73 A.3d 609, 613 (Pa.Super. 2013).
Appellant’s first contention is that Detective Brown was not entitled to
the benefit of the good faith exception to the exclusionary rule, which is not
currently recognized in Pennsylvania. This argument is wholly misplaced
because it assumes inaccurately that the detective’s interaction with
Appellant was based upon an invalid arrest warrant. Appellant equates the
case at bar with the scenarios in Commonwealth v. Edmunds, 586 A.2d
887 (Pa. 1991) and Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014),
two cases where our High Court refused to apply the good faith exception to
the exclusionary rule as a result of the Commonwealth’s execution of an
invalid search warrant. In Edmunds, the High Court rejected the trial
court’s application of the good faith exception to admit marijuana found in a
home pursuant to a search warrant as the warrant did not list that particular
structure. Similarly, in Johnson, the Supreme Court concluded that
Pennsylvania would not adopt the good faith exception for the purpose of
admitting physical evidence obtained incident to an invalid arrest warrant
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that was executed following the traffic stop of a car in which the appellant
was a passenger.
Relying upon Edmunds and Johnson, Appellant argues that, since
the only reason Detective Brown was at Red’s Ringside Café was to execute
an arrest warrant on a person who matched the description of a possible
suspect, the evidence seized from the subsequent interdiction with him must
be suppressed. He reasons that all three cases align because Detective
Brown was “operating under the good faith as to the validity of a warrant”
when he initiated the interdiction with Appellant. Appellant’s brief at 13. We
disagree.
Appellant’s fixation with the good faith exception is a red herring.
First, unlike the private residence in Edmunds or the automobile in
Johnson, Appellant was sitting in a bar, a place of public accommodation,
wearing a ski cap over his face when Detective Brown approached him and
his companion, who spontaneously volunteered that he was armed. At that
point, Detective Brown’s purpose for entering the bar was immaterial. In
reality, unless there was some show of force leading a person to feel
compelled to answer, when Detective Brown approached Appellant and his
companion in a public place, it was a mere encounter that required no level
of suspicion. Terry v. Ohio, 392 U.S. 1, 34, (1968) (“There is nothing in
the Constitution which prevents a policeman from addressing questions to
anyone on the streets.”). As Detective Brown was authorized to be present
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in the bar regardless of his possession of an arrest warrant, valid or not, the
case law that Appellant seeks to invoke is inapt because the warrant was not
the basis for the seizure. Stated plainly, unlike the contacts in Edmunds
and Johnson, the initial interaction between Appellant and Detective Brown
was constitutional notwithstanding the arrest warrant.
Appellant’s second argument actually addresses the pertinent question
in this appeal, i.e., whether Detective Brown was justified in requesting that
Appellant remove his hands from his pockets. Appellant claims that
Detective Brown lacked reasonable and articulable suspicion pursuant to
Terry, supra, to justify the seizure. Appellant’s perspective is founded
squarely upon the assertion that Detective Brown brandished his sidearm
and leveled it at him while the detective repeated his directive for Appellant
to remove his hands from his pocket. Unfortunately for Appellant, Detective
Brown categorically denied that he brandished his service weapon during the
exchange, and the trial court made an explicit credibility determination in
the detective’s favor. N.T., 9/27/16, at 10, 23. In light of our deference for
the trial court’s role as the ultimate arbiter of fact, we are bound by its
decision. See Tam Thanh Nguyen, supra. Thus, this aspect of
Appellant’s argument is baseless.
Nevertheless, we agree that Appellant was seized when Detective
Brown demanded that Appellant remove his hands from his pockets. The
relevant question is whether the directive was so restrictive and
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authoritative that a reasonable person would feel compelled to comply.
Florida v. Bostick, 501 U.S. 429, 436 (1991) (“the appropriate inquiry is
whether a reasonable person would feel free to decline the officers' requests
or otherwise terminate the encounter”); Commonwealth v. Mathis, 2017
WL 5617623, at *10 (Pa. 2017) (quoting Commonwealth v. Mendenhall,
715 A.2d 1117, 1120 (Pa. 1998)) (“the pivotal inquiry is whether,
considering all the facts and circumstances evidencing the exercise of force,
a reasonable person would have thought he was being restrained.”).
In Mathis, supra our Supreme Court recently addressed this precise
issue and concluded that Mathis had not been detained when parole officers
interacted with him while conducting a routine home visit of another
individual. The High Court reasoned that a reasonable person would not
have felt restrained from leaving the home when left alone in the kitchen
with clear access to an exit while the agents focused attention on the
parolee, and, when an agent spoke to Mathis, he used a conversational tone
and polite requests explained in terms of ensuring safety.
The instant scenario is different from the relaxed interaction depicted
in Mathis. There was no indication that Appellant could access the bar’s
exit, that Detective Brown used a conversational tone, or that he politely
explained the request in terms of safety. Instead, Detective Brown
approached Appellant while he was seated at a table in the bar and prior to
initiating the encounter, Detective Brown immediately and repeatedly
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demanded that Appellant reveal his hands. Under these circumstances, a
reasonable person would not have believed he was free to ignore Detective
Brown’s request.
Once the encounter escalated to a seizure, the interaction needed to
be justified or supported by reasonable suspicion to be constitutional
pursuant to Terry. “To establish reasonable suspicion, the officer must
articulate specific observations which, in conjunction with reasonable
inferences derived from those observations, led him to reasonably conclude,
in light of his experience, that criminal activity was afoot and that the person
he stopped was involved in that activity.” Commonwealth v. Caban, 60
A.3d 120, 128 (Pa.Super. 2012) (citation omitted). The applicable test is an
objective one. As the Supreme Court explained in Terry:
[I]n justifying the particular intrusion the police officer must be
able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion. The scheme of the Fourth Amendment
becomes meaningful only when it is assured that at some point
the conduct of those charged with enforcing the laws can be
subjected to the more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular search or
seizure in light of the particular circumstances. And in making
that assessment it is imperative that the facts be judged against
an objective standard: would the facts available to the officer at
the moment of the seizure or the search ‘warrant a man of
reasonable caution in the belief’ that the action taken was
appropriate?
Terry, supra at 21-22.
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Instantly, Appellant’s detention was justified due to the danger posed
by Appellant and his companion. Upon entering a bar that is considered a
high-crime location, Detective Brown observed Appellant sitting with a ski
mask covering his face despite the mild temperature. Appellant was in close
proximity with another male who, after seeing detectives approaching, stood
up and exclaimed, “I have a gun!” N.T., 9/27/16, at 6, 8, 16. Almost
simultaneously, Detective Brown observed Appellant set down the object
that he had been holding, place his hand in the pocket of his hooded
sweatshirt, and clench a concealed object. The detective made the
reasonable inference that Appellant posed a threat, and since Appellant’s
movements placed Detective Brown in fear for his safety, he instructed, “Sir,
get your hand out of your pocket. Take your hands out. Let me see your
hands.” Id. at 6. We have no doubt that a safety concern was presented
when Appellant’s cohort announced that he was armed because that
statement necessarily contributes to the totality of the circumstances
analysis when assessing whether Appellant posed a safety risk to Detective
Brown. See Mathis, supra at *9 (“parole agents have the authority to
conduct a protective Terry frisk of non-parolees within the course of
executing their statutorily imposed duties, so long as reasonable suspicion
supports the agents' conduct.”).1 Thus, examining the totality of the
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1
Notably, the detective herein did not conduct a frisk, he simply asked that
(Footnote Continued Next Page)
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circumstances, it is obvious that the foregoing scenario established that
Appellant posed a danger and that a legitimate fear for the detectives’ safety
existed to support a custodial seizure pursuant to Terry, supra. See
Mathis, supra at *11 (collectively, nervous behavior, speech, and furtive
movements suggesting a concealed weapon “justified . . . investigating
further in order to ensure that the object was not a firearm.”). Appellant’s
claim that the seizure was unjustified is unavailing.
Finally, we observe that Detective Brown’s directive for Appellant to
expose his hands was not tantamount to a search insofar as the detective
did not frisk Appellant or order him to remove the items from his pocket.
Accordingly, to the extent that Appellant voluntarily removed the heroin
from his pocket in bringing his hands into view, the contraband was
discovered in plain sight. Thus, inasmuch as the temporary detention was
constitutional under Terry, no basis existed to suppress the physical
evidence found in plain sight.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
Appellant show his hands.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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