Com. v. Hayes, R.

J-S45011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

RAHMAIRE HAYES,

Appellant No. 696 EDA 2017

Appeal from the Judgment of Sentence Entered September 26, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004174-2015

BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 25, 2019

Appellant, Rahmaire Hayes, appeals from the judgment of sentence of

4 to 8 years’ incarceration, followed by 4 years’ probation, imposed after he

was convicted of robbery, aggravated assault, and related offenses. Appellant

challenges the court’s denial of his pretrial motion to suppress evidence, as

well as the sufficiency of the evidence to sustain his aggravated assault

conviction. After careful review, we vacate Appellant’s judgment of sentence

and remand for a new trial.

The trial court summarized the facts of this case, as follows:
Early on December 20[], 2014[,] Complainant, Eric Walsh,
was walking to the Market-Frankford SEPTA line after work. Notes
of Testimony (“N.T.”), 07/21/2016, at 13-15. Per his job duties
as a beverage sales representative, he visited four or five bars and
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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had a single cocktail at each location. Id. at 13-14[,] 33. Near
the 1700 block of JFK Boulevard[,] Appellant approached and
engaged Complainant in a conversation requesting subway
tokens. Id. at 15-16. The two walked for a short distance and
Complainant stopped to give Appellant a subway token.
Complainant turned away and Appellant physically attacked him,
causing him to black out. Id. at 17-18. When the Complainant
regained consciousness, his belongings were gone, and he [had]
sustained injuries, including cuts on his ears and a laceration on
the back of his head. Id. at 18-21. Complainant’s missing items
included cash, a cellular phone, his wallet containing debit and
credit cards, photos, social security card, driver’s license, and a
Breitling watch. Id. Complainant was transported to Hahnemann
Hospital via ambulance, where he received a tetanus shot, a CT
scan, and was placed on concussion protocol. Id. Once released
from the hospital, Complainant reported his effects missing. Id.
at 24. Several unauthorized transactions were noted, all occurring
on [December 20, 2014], at various 7-Eleven and Wawa locations
within several blocks of the incident at 1700 JFK Boulevard. The
total of all transactions came to $670.80[,] as noted in the police
report following Appellant’s arrest.

A video was later published on the Philadelphia Police
Department’s … YouTube page, depicting unidentified individuals
at several convenience store locations where the card was used;
the Philadelphia Police Department requested information on the
people in the video. Notes of Motion Testimony (“N.M.T.”),
03/21/2016, at 7-8. SEPTA Officer [Derrick] Gordon saw the
video on January 8th, 2015[,] and later that day he saw and
recognized Appellant from the video and placed him in an
investigatory detention for identification purposes. Id. Officer
Gordon contacted Philadelphia Police and spoke with the lead
investigator, Detective [Anthony] Anderson, who requested
Appellant be brought to Central Detectives for identification
purposes. Id. With Appellant unable to present any personal ID,
Officer Gordon handcuffed Appellant and placed him in the vehicle
to be brought to Detective Anderson. Id. Appellant was
interviewed and released. A warrant for his arrest was later issued
on January 27[, 2015]. Id. at 18. Appellant was arrested on
March 12[,] 2015.

Trial Court Opinion (TCO), 11/14/18, at 2-3.

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Appellant was charged with single counts of robbery, 18 Pa.C.S. §

3701(a)(1)(ii); aggravated assault, 18 Pa.C.S. § 2702 (a); conspiracy, 18

Pa.C.S. § 903; theft by unlawful taking, 18 Pa.C.S. § 3921(a); receiving stolen

property, 18 Pa.C.S. § 3925(a); simple assault, 18 Pa.C.S. § 2701(a); and

recklessly endangering another person, 18 Pa.C.S. § 2705. He was also

charged with six counts of forgery, 18 Pa.C.S. § 4101(a)(1), and seven counts

of access device fraud, 18 Pa.C.S. § 4106(a)(1).

Prior to trial, Appellant filed a motion to suppress the statement he

provided to police during the interview on January 8, 2015. Appellant

contended, inter alia, that Officer Gordon had arrested him without probable

cause and, thus, his statement given just after that illegal arrest must be

suppressed as ‘fruit of the poisonous tree.’ On March 21, 2016, a suppression

hearing was conducted, at which Officer Gordon was the sole witness. At the

close of the hearing, the court found that the officer possessed probable cause

to support the arrest, and it denied Appellant’s suppression motion.

Appellant proceeded to a non-jury trial, at the close of which the court

granted his motion for judgment of acquittal regarding his six counts of

forgery, but convicted him of the remaining fourteen charges. On September

26, 2016, Appellant was sentenced to the aggregate term set forth supra. He

filed a timely post-sentence motion, which was denied by operation of law on

January 27, 2017. Appellant then filed a timely notice of appeal, and he also

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

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statement of errors complained of on appeal. The court filed its Rule 1925(a)

opinion on November 14, 2018.

On appeal, Appellant states three issues for our review, which we have

reordered for ease of disposition:

1. Is the evidence insufficient to sustain a conviction of
[a]ggravated [a]ssault where Appellant did not intend to cause
serious bodily injury and there was no serious bodily injury
inflicted?

2. Did the trial court err by denying Appellant’s [m]otion to
[s]uppress where Appellant’s statement was the fruit of an illegal
arrest not supported by probable cause?

3. Did the trial court err by denying Appellant’s [m]otion to
[s]uppress where Appellant’s statement was the fruit of an illegal
arrest as the arresting officer lacked authority to arrest Appellant?

Appellant’s Brief at 5.

In assessing Appellant’s first issue, we begin by setting forth our

standard of review of a challenge to the sufficiency of the evidence:

In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

Appellant challenges only his conviction for aggravated assault. “A

person is guilty of aggravated assault if he … attempts to cause serious bodily

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injury to another, or causes such injury intentionally, knowingly or recklessly

under circumstances manifesting extreme indifference to the value of human

life….” 18 Pa.C.S. § 2702(a)(1). “Serious bodily injury” is defined as “[b]odily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S. § 2301.

Here, Appellant claims that he did not intend to cause, nor did he

actually cause, serious bodily injury to the victim. In disagreeing with this

claim, the trial court reasoned:

Complainant lost consciousness and when he came-to, [he] had
an inch-long laceration on the back of his scalp, as well as a split
ear lobe and swollen jaw and glands. As seen in multiple cases,
loss of consciousness can contribute to a finding of serious bodily
harm. Further, EMTs noted slurred speech and an unsteady gait
upon arrival in the ambulance. Complainant was given a tetanus
shot, a CT scan, and placed on concussion protocol due to his loss
of consciousness. According to his testimony, he continues to
suffer from memory loss and headaches as a result of the incident.
Under the statute and case law, Complainant suffered serious
bodily injury at the hands of Appellant. Appellant’s argument of
insufficient evidence is without merit.

TCO at 9-10.

We agree with the court’s conclusion. Notably, the victim lost

consciousness due to the severity of Appellant’s attack. Additionally, although

the victim testified that his memory loss and continuing headaches are minor,

see N.T. Trial at 30, his testimony that he suffers from these issues was

sufficient to establish ‘protracted loss or impairment of the function’ of his

brain. Therefore, the evidence was sufficient to prove Appellant inflicted

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serious bodily injury on the victim that constituted aggravated assault. See

Commonwealth v. Kinney, 157 A.3d 968, 973 (Pa. Super. 2017) (upholding

Kinney’s conviction for aggravated assault where he repeatedly struck and

kicked the victim in the head, knocking the victim unconscious and resulting

in four of the victim’s teeth falling out and swelling of his eye and lips).

In Appellant’s next issue, he challenges the court’s denial of his pretrial

motion to suppress. According to Appellant, Officer Gordon lacked probable

cause to arrest him without a warrant, and the statement he provided to police

was fruit of that illegal arrest. Appellant stresses that,

[Officer Gordon] admitted that [Appellant] was not doing anything
at all illegal, and the only reason he arrested [Appellant] was for
identification purposes. Specifically, Officer Gordon had seen a
Philadelphia Police video, pertaining to a robbery, in which he
recognized [Appellant]. However, the video did not depict any
footage of the robbery but showed men inside [convenience]
stores and a narrative that requested their identity. Officer
Gordon had no knowledge of the robbery and whether [Appellant]
was involved. Thus, Officer Gordon did not have probable cause
that [Appellant] committed a crime, and the ensuing arrest was
illegal.

Appellant’s Brief at 11 (citations to the record omitted).

For the reasons stated infra, we agree with Appellant. Preliminarily, we

note:
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

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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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (internal

brackets omitted).

In reviewing the specific arguments presented by Appellant, we are

guided by the following:

In order to be constitutionally valid under the Fourth Amendment
to the United States Constitution, a warrantless arrest must be
supported by probable cause. Where probable cause to arrest
does not exist in the first instance, any evidence seized in a search
incident to arrest must be suppressed. It is well settled that in
determining whether probable cause exists to justify a warrantless
arrest, the totality of the circumstances must be considered.

***

Under the totality of the circumstances test, as refined by more
recent cases, probable cause exists 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. Mere suspicion is not a
substitute for probable cause. The totality of the circumstances
test dictates that we consider all the relevant facts, when deciding
whether the warrantless arrest was justified by probable cause.

In Interest of O.A., 717 A.2d 490, 495 (Pa. 1998) (internal citations

omitted).

Here, at the close of the suppression hearing, the trial court made the

following findings of fact, which are supported by the suppression hearing

testimony of Officer Gordon, and are not objected to by either party on appeal:

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THE COURT: Officer Derrick Gordon, who is a SEPTA police officer,
presently working with the K-9 Unit who has nine years of
experience with the SEPTA police, who has also worked plain
clothes and tactical, testified that he was personally familiar with
[Appellant] in this case and had contact with him numerous times.
He emphasized he was very familiar with [Appellant] and
[Appellant] … had issued, or rather the officer, had issued citations
to [Appellant] on numerous occasions.

On the morning of January 8th, Officer Gordon testified that
he reviewed a You[T]ube video that he saw from the Philadelphia
Police Department that depicted suspects of a couple of
robberies.[1] He watched this video and --

MR. DIMUZIO: Your Honor, can I be clear? It wasn’t a couple. It
was one robbery. Those were videos of people entering the store.
None of those stores were robbed.

THE COURT: Well, okay. But the videos depicted suspects --

MR. DIMUZIO: Correct.

THE COURT: -- who were wanted for robberies.

MR. DIMUZIO: One robbery.

THE COURT: Or a robbery. The suspects who were seen on this
You[T]ube video were shown. Officer Gordon testified that he
himself identified one of the suspects as [Appellant].

____________________________________________

1 We note that the video was entered into evidence by the Commonwealth at
the suppression hearing and viewed by the trial court, but it is not contained
in the certified record. Consequently, the Commonwealth argues that we
should deny Appellant relief because “[i]t was, of course, [his] burden as the
appellant to provide this Court with a complete record.” Commonwealth’s
Brief at 7 (citing, inter alia, Commonwealth v. Spotti, 94 A.3d 367, 381 (Pa.
Super. 2014)). We decline to deny Appellant relief because he failed to
produce for this Court a Commonwealth’s exhibit that the Commonwealth
admits it cannot even locate. See Commonwealth’s Brief at 7 (“That video is
not part of the certified record on appeal — nor has the Commonwealth been
able to locate a copy of it.”). Reaching this result would invite the
Commonwealth to lose or destroy pertinent exhibits in order to prevent
appellate relief for criminal defendants.

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On January 8[], 2015, while on duty, he saw [Appellant] …
and stopped him because of the video he saw, the You[T]ube
video. [Appellant] did not have any identification on him. [Officer
Gordon] contacted the investigating detective and took
[Appellant] to Central Detectives for possible ID pertaining to this
robbery. None of the video clips depicted an actual robbery at the
time. When he, [Appellant], was stopped, he was not doing
anything illegal.

MR. HOWELL: May I clarify one thing on that? It didn’t depict a
robbery, but it had a narrative.

THE COURT: It did. The video did provide a narrative indicating
the robbery that occurred and that the individuals in the video
were involved. After bringing [Appellant] to Central Detectives,
he was properly Mirandized[2], as stipulated by both counsel, and
a statement was given. A statement was also taken [from] …
Police Officer Gordon as well.

***

The [c]ourt finds that probable cause existed for the
following factors: Officer Gordon testified credibly that he was
very familiar with [Appellant]. He reviewed the video and believed
the individual depicted in the video to be [Appellant].

While the questioning and cross-examination brought the
issue of identification, at no point did the testimony of Officer
Gordon question the identification of [Appellant], but [Appellant]
was being brought in for possible identification by the detectives
as the individual, or confirmation as the individual, in the video.

This is no different than matching flash information, except
that the flash information is actually pictured and available for
comparison. So[,] the [c]ourt finds there was probable cause to
stop and detain [Appellant]. The motion to suppress is denied.

N.T. Suppression Hearing at 33-37 (emphasis in original).

Initially, we note that the court concludes in its Rule 1925(a) opinion,

and neither party disputes, that Appellant was effectively arrested by Officer

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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Gordon when the officer handcuffed, searched, and then transported Appellant

to the police station. See id. at 8, 15 (Officer Gordon’s testifying he

handcuffed, searched, and transported Appellant to the police station).

Clearly, Officer Gordon’s actions constituted an arrest, as he subjected

Appellant to his will and control. See Commonwealth v. Hannon, 837 A.2d

551, 554 (Pa. Super. 2003) (“Arrest is an act that indicates an intention to

take a person into custody or that subjects the person to the will and control

of the person making the arrest.”) (citation and emphasis omitted).

Because Officer Gordon arrested Appellant, and did so without a

warrant, we must next assess whether he had probable cause to do so. See

id.

Probable cause is determined by considering the totality of the
circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,
76 L.Ed.2d 527 (1983). Under the totality of the circumstances,
a police officer must make a practical common sense decision
whether, given all of the circumstances known to him at that time,
including hearsay information, there is a fair probability that a
crime was committed and that the suspect committed the crime.

Id. at 554–55 (one internal citation omitted).

Interestingly, in its Rule 1925(a) opinion, the trial court changes its

position and concludes that “[t]he record as it stands does not support a

finding of probable cause, as there was no crime occurring at the time of the

interaction, nor in the videos placed on the [Philadelphia Police Department’s]

YouTube page….” TCO at 5. In response, the Commonwealth counters that

the officer had probable cause to arrest because “[Appellant] was caught on

video entering a series of convenience stores at the same time that the

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victim’s bank card was used without his authorization to withdraw money from

his account[,]” which “included instances in which hundreds of dollars were

withdrawn shortly after two o’clock in the morning, less than twenty minutes

after and only blocks away from the scene of the robbery.” Commonwealth’s

Brief at 8.

However, the facts cited by the Commonwealth were established during

Appellant’s trial, through the testimony of the victim and Detective Anderson.

See id. (citing N.T. Trial at 26-29, 72-73). Our Supreme Court has held that

appellate courts may not look “beyond the evidentiary record presented at the

pre-trial hearing in examining a denial of suppression….” In re L.J., 79 A.3d

1073, 1087 (Pa. 2013).

Limiting our review to the suppression record, we agree with the trial

court that Officer Gordon did not have probable cause to arrest Appellant.

Officer Gordon acknowledged at the suppression hearing that he was not

involved in the initial investigation of the robbery. N.T. Suppression Hearing

at 12. Thus, he had no knowledge of the facts and circumstances of the crime

that would lead him to reasonably conclude that Appellant had committed the

offense.

Instead, the officer had merely observed a video of Appellant and a

cohort “entering a store[,]” id., and learned from a narrative on the video that

Appellant was a suspect in a robbery. Thus, as the trial court observed at the

suppression hearing, Officer Gordon essentially received information akin to a

police bulletin. This Court has stated:

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[A] police officer may rely upon information which is broadcast
over a police radio in order to justify an investigatory stop and
subsequent arrest where the Commonwealth can establish either
(1) that probable cause existed for issuing the bulletin or
(2) that new information disclosed during the stop gave rise to
probable cause for arrest.

Commonwealth v. Prengle, 437 A.2d 992, 994 (Pa. Super. 1981) (emphasis

added). In this case, the Commonwealth presented no evidence to

demonstrate that probable cause existed for issuing the bulletin, i.e., the

YouTube video. Notably, the lead investigator in the case, Detective

Anderson, was not called as a witness at the suppression hearing to explain

what information he knew prior to releasing the video that led him to deem

Appellant a suspect in the robbery. Therefore, the Commonwealth failed to

establish that the detective possessed probable cause to issue the bulletin on

which Officer Gordon premised Appellant’s arrest. Consequently, we conclude

that Appellant’s arrest was not supported by probable cause and was,

therefore, illegal.

Having concluded Appellant’s arrest was illegal, “the question remains

whether or not the statements and evidence obtained subsequent to that

illegal arrest were so far removed from that illegal arrest as to vitiate any taint

arising from the initial illegal arrest.” Commonwealth v. Brooks, 364 A.2d

652, 657 (Pa. 1976) (citing Wong Sun v. United States, 371 U.S. 471

(1963)). The trial court concluded, in its Rule 1925(a) opinion, that

Appellant’s statement was sufficiently cleansed of the taint from his illegal

arrest because the police did not use coercive tactics in interviewing Appellant,

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he was provided Miranda warnings, and he knowingly, intelligently, and

voluntarily waived his rights before speaking to police. See TCO at 6-7.

We disagree. In Brooks, our Supreme Court explained:

The test announced by the United States Supreme Court in Wong
Sun is:

“whether, granting establishment of the primary illegality,
the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.” [Wong Sun,] 371 U.S. at 488, 83 S.Ct. at 417, 9
L.Ed.2d at 455.

The challenged evidence may be purged of the taint of the primary
illegality only if it results from ‘an intervening independent act of
a free will,’ Wong Sun, supra, 371 U.S. at 486, 80 S.Ct. at 416,
9 L.Ed.2d at 454, or if the connection between the arrest and the
evidence has ‘become so attenuated as to dissipate the taint.’ Id.
at 491, 83 S.Ct. at 419, 9 L.Ed.2d at 457.

Two factors significant to the determination of the relationship
between an illegal arrest and subsequent confession have been
articulated by the Third Circuit of the United States Court of
Appeals in Commonwealth ex rel. Craig v. Maroney, 348 F.2d
22, 29 (3d Cir. 1965), cert. den. 384 U.S. 1019, 86 S.Ct. 1966,
16 L.Ed.2d 1042 (1966). These factors are:

‘(a) the proximity of an initial illegal and custodial act to the
procurement of the confession; and

(b) the intervention of other circumstances subsequent to
an illegal arrest which provide a cause so unrelated to that
initial illegality that the required evidence may not
reasonably be said to have been directly derived from, and
thereby tainted by, that illegal arrest.’

We note that, having failed to establish the legality of the initial
arrest, the prosecution must bear the burden of showing that any
evidence obtained subsequent to it has been obtained by means
sufficiently distinguishable from the initial illegality so as to be
purged of the primary taint rather than having been come by by

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exploitation of that illegality. [In re] Betrand, … 303 A.2d 486
([Pa.] 1973).

Brooks, 364 A.2d at 657.

In Brooks, the “appellant confessed less than three hours after the

initial illegal arrest” and the only other intervening factor between the arrest

and Brooks’ confession was a polygraph examination taken by Brooks. Id. at

658. Our Supreme Court concluded that these facts were not “sufficient to

break the chain of circumstances between the illegal arrest and the challenged

evidence….” Id.

We agree with Appellant that Brooks controls in this case. See

Appellant’s Brief at 12-13. Here, Officer Gordon illegally arrested Appellant

and transported him to the police station. The Commonwealth offered no

evidence to establish how much time passed between Appellant’s arrival at

the station and his statement to police and, therefore, this factor cannot be

weighed in the Commonwealth’s favor. Additionally, the Commonwealth did

not present evidence of any intervening factor between Appellant’s arrest and

interrogation, except for the providing of his Miranda rights and his waiver

thereof. However, even if that waiver was knowing, intelligent, and voluntary

— and no coercive tactics were employed by the interviewing officers — these

circumstances were not sufficient, in and of themselves, to cleanse Appellant’s

statement from the taint of his illegal arrest. See Brooks, supra; see also

Commonwealth v. Yocham, 375 A.2d 325, 329–30 (Pa. 1977) (“Where the

primary taint results from an illegal arrest and the confession is obtained

through interrogation occurring during the period of custody resulting from

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that arrest we have not been willing to find a dissipation of the taint solely

because proper warnings were given prior to the interrogation. Further, our

decisions have held that the mere absence of evidence of police coercion is

not sufficient to justify the conclusion that the accused’s statement was the

product of free will sufficient to overcome the taint of the unlawful arrest.”).

Accordingly, Appellant’s statement was not admissible, and the trial court

erred by denying his motion to suppress it.3

Consequently, we vacate Appellant’s judgment of sentence and remand

for a new trial.

Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/19

____________________________________________

3 In light of our disposition of Appellant’s second issue, we need not address
his third claim that Officer Gordon lacked jurisdiction to arrest him.

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