J-S10039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LYDELL WALKER :
:
Appellant : No. 3392 EDA 2017
Appeal from the Judgment of Sentence September 28, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012794-2014
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 16, 2019
Appellant, Lydell Walker, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his bench
trial convictions for possession of a controlled substance, possession with
intent to deliver (“PWID”), possession of marijuana, possession of drug
paraphernalia, possession of a firearm prohibited, firearms not to be carried
without a license, carrying a firearm in public in Philadelphia, and possession
of an instrument of crime (“PIC”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
On October 24, 2014, at approximately 5:25 a.m.,
Philadelphia police officers and probation officers for the
YVRP (“Youth Violence Reduction Partnership”) executed a
bench warrant for a juvenile, [K.W.], at 1420 S. Allison
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135 P.S. §§ 780-113(a)(16), (30), (31), (32); 18 Pa.C.S.A. §§ 6105(a)(1),
6106(a)(1), 6108, and 907(a), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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Street, Philadelphia, PA. When the police and probation
officers got to 1420 S. Allison Street, they knocked,
announced “police,” and then heard scrambling and moving
around as if the individuals in the house were attempting to
flee. At that point, a probation officer for YVRP forced entry
and as soon as the officers entered the house, they
noticed…two males exiting the rear of the house. At that
point, Police Officer Nock ran out of the front of the house
and around the block. As he was running around the block,
he noticed two males fitting the same description as the
individuals [who] just ran out of the back of the house
standing on the corner of 56th [Street] and Springfield
[Avenue].
At that point, Officer Nock announced “police,” and the two
individuals separated. [Appellant] ran westbound on
Springfield [Avenue] and the other male ran southbound on
56th Street. Officer Nock then chased after Appellant and
as [Officer Nock] chased after [Appellant], Appellant
continued to touch his waistband, put his hands up and
yelled, “I don’t have anything. I don’t have anything.”
Officer Nock yelled back, “if you don’t have anything, stop
running.” Shortly after [Officer Nock] said that, a .45 caliber
gun fell from the right side of Appellant’s waistband to the
ground. As it fell to the ground, Appellant stopped and then
ran back to attempt to retrieve the gun. Officer Nock then
challenged Appellant by drawing his weapon and saying
“don’t do it.” Appellant then turned around and took off
again. Officer Nock ran after him and caught Appellant
about a block away at 57th [Street] and Chester Avenue on
the corner. Officer Nock then returned to the area where
he saw the gun fall from [Appellant’s] person and recovered
the firearm, which was loaded with thirteen (13) live rounds.
[On July 20, 2015,] Appellant’s counsel moved to suppress
the evidence under the Fourth and Fourteenth Amendments
of the U.S. Constitution, [and] Article 1, Section 8 of the
Pennsylvania Constitution. Appellant’s counsel conceded
that the [October 24, 2014 search warrant] was lawful, but
argued that the police and probation officers should not
have been at the residence (1420 S. Allison Street,
Philadelphia, PA) altogether as it was not where [K.W.],
whom they executed the [bench] warrant for, lived.
Appellant’s counsel also argued that the officer should not
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have given chase and the chase would be dispositive of the
firearm only, not the drugs inside the house.
The Commonwealth presented testimony from two officers,
Probation Officer Mark Costanzo and Police Officer Nock.
Mr. Costanzo is a probation officer with the City of
Philadelphia and works with YVRP, which deals with high-
risk juveniles. YVRP probation officers meet with the
juveniles ten times a month and do patrols with police in the
area where they’re stationed. Mr. Costanzo supervised
[K.W.], Appellant’s brother, and on October 23, 2014, [Mr.
Costanzo] received a call from De La Salle Vocational School
informing him that [K.W.] had come to school with a large
amount of money and drug paraphernalia. As a result, Mr.
Costanzo told [K.W.] to come in for a drug screen. When
[K.W.] went in for the drug screen, Mr. Costanzo was told
by the drug lab that [K.W.] had attempted to fake his urine
test. Mr. Costanzo then called [K.W.] and told him that he
needed to come back and take the urine screen. [K.W.]
failed to return for the urine screen, and consequently, Mr.
Costanzo prepared a motion to inform the judge that [K.W.]
was on probation with the Honorable Amanda Cooperman,
who then issued a bench warrant for [K.W.’s] arrest on
October 23, 2014. Mr. Costanzo informed the [c]ourt that
1420 S. Allison Street was [K.W.’s] address of record,
although he also stayed at 1025 Clifton Avenue, Collingdale,
PA.
On October 24, 2014, Appellant was arrested and charged
with [PWID]; Possession of a Firearm Prohibited; Firearms
Not to be Carried without a License; Intentionally Possessing
Controlled Substance by Person Not Registered; Possession
of Marijuana; Use/Possession of Drug Paraphernalia;
Carrying Firearms in Public in Philadelphia; [and PIC].
Following a preliminary hearing held on November 13, 2014,
all charges were held for court. On September 10, 2015,
[the court] heard testimony on Appellant’s Motion to
Suppress based on the four corners of the search warrant.
On December 1, 2015, [the court] issued an Order Denying
the Motion to Suppress the Evidence. On July 14, 2017,
[after a stipulated bench trial,] Appellant was found guilty
on all charges. On September 28, 2017, Appellant was
sentenced to an aggregate sentence of 5 [to] 10 years’ state
incarceration followed by 5 years’ reporting probation. On
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October 4, 2017, Appellant filed a [pro se] Motion for
Reconsideration of Sentence and on October 16, 2017,
Appellant filed a [counseled] Notice of Appeal to the [this
Court]. On October 16, 2017, Appellant’s counsel filed a
[voluntary] Statement of [Errors] Complained of on Appeal
[pursuant to Pa.R.A.P. 1925(b)] on behalf of Appellant.
(Trial Court Opinion, filed July 23, 2018, at 1-4) (internal citations omitted).
On December 14, 2017, this Court issued a rule to show cause why the
appeal should not be dismissed as interlocutory because Appellant had filed a
notice of appeal before the court entered an order regarding Appellant’s post-
sentence motion. Appellant’s counsel responded that same day, conceding he
had filed the appeal prematurely because counsel was unaware of the pro se
post-sentence motion. Counsel further stated he had no objection to this
Court quashing the earlier appeal. On February 2, 2018, the post-sentence
motion was denied by operation of law. Appellant filed a second notice of
appeal on February 7, 2018, along with a voluntary Rule 1925(b) statement.
On August 23, 2018, this Court issued an order that referred the issue raised
by the rule to show cause to a merits panel.2
Appellant raises the following issue for our review:
DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN
DENYING APPELLANT’S MOTION TO SUPPRESS?
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2 This appeal is properly before this Court. Appellant’s premature notice of
appeal relates forward to February 2, 2018, the date the pro se post-sentence
motion was denied by operation of law. See Pa.R.A.P. 905(a)(5) (stating: “A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof”).
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(Appellant’s Brief at 6).
Our standard of review of the denial of a motion to suppress evidence
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 [the] 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 [trial court
are] subject to plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012), appeal
denied, 618 Pa. 684, 57 A.3d 68 (2012).
Appellant argues police had no lawful purpose to enter the residence at
1420 S. Allison Street with only an arrest warrant for K.W. Appellant contends
probation officers visited K.W. at 1025 Clifton Avenue many times over a
three-month period and knew K.W. only went to 1420 S. Allison Street once,
for Appellant’s birthday. Appellant avers police could not enter 1420 S. Allison
Street without reasonable belief that K.W. lived within that residence or a valid
search warrant.
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Appellant further argues that even if police lawfully entered his
residence, they had no reasonable suspicion or probable cause to chase
Appellant after he fled the residence. Appellant submits police did not observe
drugs in plain view before they chased Appellant; instead, Officer Nock
immediately went around the outside of the residence after he observed
Appellant and another man run out the back door. Appellant complains police
provoked him to flee, and even though Appellant lived in a high crime area,
Officer Nock did not state Appellant’s flight raised suspicion that criminal
activity was afoot. Appellant contends the court should have suppressed the
recovered firearm as a result of a forced abandonment and the narcotics as
fruit of the poisonous tree. Appellant concludes this Court should vacate the
judgment of sentence and remand for further proceedings. We cannot agree.
Preliminarily, an appellant bears the burden to ensure the certified
record on appeal is complete and contains all the necessary materials for the
reviewing court to perform its duty. Commonwealth v. Bongiorno, 905
A.2d 998, 1000 (Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 688, 917
A.2d 844 (2007). This Court is limited to considering only those materials
which have been certified in the record on appeal. Pa.R.A.P. 1921;
Commonwealth v. Osellanie, 597 A.2d 130, 131 (Pa.Super. 1991). Where
a claim is dependent upon materials not provided in the certified record, the
claim is waived. Commonwealth v. Muntz, 630 A.2d 51, 55 (Pa.Super.
1993). Specifically, an appellant’s claim is waived where the appellant fails to
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include exhibits in the certified record necessary for appellate review.
Commonwealth v. Proetto, 771 A.2d 823, 834 (Pa.Super. 2001), affirmed,
575 Pa. 511, 837 A.2d 1163 (2003).
Instantly, the first part of Appellant’s argument rests primarily on the
validity of the October 23, 2014 bench warrant for K.W. Appellant’s omnibus
pretrial motion did not attach that warrant for the court’s review. Instead,
Appellant attached the later search warrant and affidavit of probable cause
from October 24, 2014, which the police obtained after they had entered
Appellant’s residence to execute the bench warrant for K.W. and saw drugs in
plain view. At the suppression hearing on September 10, 2015, Appellant
argued the police had no reason to obtain a bench warrant for K.W. at the
1420 S. Allison Street address and no right to enter that residence.
Appellant’s failure to provide the suppression court with a copy of the bench
warrant for K.W. and include it in the certified record precludes this Court’s
ability to review the bench warrant for its integrity. See Bongiorno, supra.
Therefore, this portion of Appellant’s argument is waived. See Proetto,
supra; Muntz, supra.
Appellant focused the remaining portion of his argument on appeal on
the gun recovered during his flight from the police, which implicates the
following principles: contacts between the police and citizenry fall within three
general classifications:
The first [level of interaction] is a “mere encounter” (or
request for information) which need not be supported by
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any level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative detention”
must be supported by a 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
functional equivalent of an arrest. Finally an arrest or
“custodial detention” must be supported by probable cause.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011)
(quoting Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005),
appeal denied, 583 Pa. 668, 876 A.2d 392 (2005)).
“An investigative detention…constitutes a seizure of a person and thus
activates the protections of Article 1, Section 8 of the Pennsylvania
Constitution.” Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super.
2005) (quoting Commonwealth v. Stevenson, 832 A.2d 1123, 1127
(Pa.Super. 2003)). To institute an investigative detention, an officer must
have reasonable suspicion of criminal activity:
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led
him reasonably to conclude, in light of his experience, that
criminal activity was afoot and that the person he stopped
was involved in that activity. Therefore, the fundamental
inquiry of a reviewing court must be an objective one,
namely, whether the facts available to the officer at the
moment of intrusion warrant a [person] of reasonable
caution in the belief that the action taken was appropriate.
Jones, supra (internal citation omitted). See also Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc) (stating presence in
high crime area can support existence of reasonable suspicion).
“Probable cause is made out when the facts and circumstances which
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are within the knowledge of the officer at the time of the arrest, and of which
he has reasonably trustworthy information, are sufficient to warrant a
[person] of reasonable caution in the belief that the suspect has committed or
is committing a crime.” Commonwealth v. Thompson, 604 Pa. 198, 203,
985 A.2d 928, 931 (2009) (internal quotation marks omitted).
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require
only a probability, and not a prima facie showing, of
criminal activity. In determining whether probable cause
exists, we apply a totality of the circumstances test.
Id. (emphasis in original) (internal citations and quotation marks omitted).
See also Commonwealth v. Cotton, 740 A.2d 258 (Pa.Super. 1999)
(stating bench warrant establishes probable cause for arrest).
Further, “to prevail on a suppression motion, a defendant must
demonstrate a legitimate expectation of privacy in the area searched or effects
seized, and such expectation cannot be established where a defendant has
meaningfully abdicated his control, ownership or possessory interest.”
Commonwealth v. Dowds, 563 Pa. 377, 388, 761 A.2d 1125, 1131 (2000).
Pennsylvania law sets forth the concept of abandonment as follows:
The theory of abandonment is predicated upon the clear
intent of an individual to relinquish control of the property
he possesses.
Abandonment is primarily a question of intent, and intent
may be inferred from words spoken, acts done, and other
objective facts. All relevant circumstances existing at the
time of the alleged abandonment should be considered.
Police pursuit or the existence of a police investigation does
not of itself render abandonment involuntary. The issue is
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not abandonment in the strict property-right sense, but
whether the person prejudiced by the search had voluntarily
discarded, left behind, or otherwise relinquished his interest
in the property in question so that he could no longer retain
a reasonable expectation of privacy with regard to it at the
time of the search.
Commonwealth v. Williams, 551 A.2d 313, 315 (Pa.Super. 1988) (quoting
Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1219-20
(1976)) (internal citations and emphasis omitted). Evidence of abandonment
must plainly demonstrate the individual’s attempt to dissociate from the
property. Commonwealth v. Johnson, 636 A.2d 656 (Pa.Super. 1994),
appeal denied, 539 Pa. 646, 651 A.2d 534 (1994) (holding defendant who
made conscious effort to dissociate himself from drug supply in event of police
intervention had effectively abandoned any reasonable expectation of privacy
in bag containing narcotics).
Police officers may not force or coerce abandonment of evidence
through improper or unlawful acts; however, police presence does not itself
render the abandonment forced or coerced. Commonwealth v. Pizarro, 723
A.2d 675, 679-80 (Pa.Super. 1998) (stating police cruiser passing through
neighborhood on routine patrol does not amount to police coercion compelling
defendant’s abandonment of contraband); Commonwealth v. Riley, 715
A.2d 1131, 1134 (Pa.Super. 1998), appeal denied, 558 Pa. 617, 737 A.2d 741
(1999) (holding mere approach by law enforcement official does not amount
to police coercion requiring suppression of evidence discarded by defendant).
Instantly, early on October 24, 2014, Mr. Costanzo and Officer Nock,
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with two other officers, went to 1420 S. Allison Street to execute a bench
warrant for K.W., based on the information from K.W. that he was visiting
Appellant. Police knocked and announced their presence and heard
scrambling from within the residence. Police knocked down the door and saw
two males exiting the house through the rear door. Officer Nock ran around
the block outside to the back of the house, which is located in a high crime
area, and saw two males who fit the description of the males who had fled the
house. Officer Nock announced “police” and both males fled in separate
directions. A .45 caliber handgun fell from Appellant’s waistband as he ran,
and Officer Nock arrested Appellant and recovered the weapon.
When the police went to 1420 S. Allison Street to execute a bench
warrant for K.W., they saw two males run out the rear door. Officer Nock
immediately ran to the back outside of the house, with reasonable suspicion
that one of the individuals was K.W. See Foglia, supra; Jones, supra.
Officer Nock found the two men who had fled and announced his presence.
See id.; Cotton, supra. Both men again fled, and a firearm fell from
Appellant’s waistband. Under these circumstances, the pursuit of Appellant
did not force or coerce him to abandon the firearm, where the weapon fell
from his waistband during the second flight. See Johnson, supra; Williams,
supra. Therefore, the court properly denied suppression of the firearm.
Accordingly, we affirm.
Judgment of sentence affirmed.
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Judge Colins joins this memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/19
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