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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
IRVIN GOULBOURNE, : No. 644 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, January 28, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001843-2013
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 15, 2016
Irvin Goulbourne appeals from the judgment of sentence entered
January 28, 2015, following his conviction in a waiver trial of possession of a
controlled substance, possession with intent to deliver a controlled
substance, and possession of paraphernalia.1 We affirm.
The suppression court provided the following:
On August 3, 2012, approximately 3:48 p.m.,
Police Officer Shaun McPhillips testified that while on
duty with his partner, Officer Wissman, their tour of
duty took them to the area of the 1900 block of
Sansom Street in response to a radio flash about a
male who had committed a burglary earlier in the
day. The flash the officers had received was a black
male with an orange shirt and orange sneakers and
also put over the radio was that two firearms were
taken. Approximately one hour and forty minutes
after the flash came out for the burglary, Officer
1
35 Pa.C.S.A. § 780-113(a)(16), (30) & (32), respectively.
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McPhillips testified that they observed the Appellant
walking westbound on Sansom Street wearing an
orange shirt, khaki shorts, and orange sneakers.
The officers then observed the Appellant enter a bar,
O’Shea’s Tavern, at 1907 Sansom Street. The
officers went into the bar and approached the
Appellant and identified themselves as police
officers. They then asked the Appellant to exit the
bar and the Appellant complied. Once outside the
bar, the officers told Appellant that he had been
stopped for meeting a description of a prior burglary
and they asked the Appellant for his identification.
Appellant claimed he did not have any identification
so the officers then asked for his name and date of
birth for an NCIC/PCIC check. Appellant provided
the name of Reginald Goldberg but no results came
back for that name.
Officer McPhillips testified that at that point
based on the fact that Defendant provided a name
that was not coming up on the system that he met
the general flash of the burglary, the officers decided
to bring the Appellant to the 9th District for further
investigation. Officer McPhillips testified that it was
his intent to get fingerprints of the Appellant to
verify his identity and determine if he had any
outstanding warrants. For safety purposes,
Officer McPhillips patted Appellant down before
placing him in the marked patrol vehicle. When
Officer McPhillips conducted the pat down, he felt a
plastic bag of “soft powder” that was knotted, which
Officer McPhillips testified he knew based on his
experience to immediately be narcotics. Upon
arrest, the officers recovered one clear bag with
alleged cocaine, one Marlboro cigarette box with
thirty four clear bags of alleged cocaine, one green
mint tin canister containing ten clear bags of alleged
cocaine, and one brown marijuana grinder, as well as
$1,010.00 in currency.
Trial court opinion, 6/4/15 at 2-3 (citations omitted).
Appellant raises the following issues for our review:
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A. Did not the lower court err in denying
Appellant’s motion to suppress evidence where
Appellant was subjected to an unconstitutional
investigatory detention outside the bar without
reasonable suspicion, the detention was
continued without either reasonable suspicion
or probable cause to believe that Appellant had
committed the crime of giving a false name,
and he was frisked without objectively
reasonable suspicion that he was armed and
dangerous[?]
B. Even if there was a lawful basis to conduct a
Terry frisk, did not the lower court err in
denying Appellant’s motion to suppress
evidence where there was insufficient evidence
under the plain feel rule to permit the officer to
seize a small soft bag from Appellant’s pants
pocket?
C. Did not the lower court err in denying
Appellant’s motion to suppress evidence where
law enforcement officers’ actions in taking
Appellant into the police station for
fingerprinting and identification check was a
full blown arrest, which was not supported by
probable cause, and the resulting search and
seizure from his person was not incident to a
lawful arrest?
Appellant’s brief at 3.
Our standard of review for challenges to the denial of a suppression
motion is as follows:
Our 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
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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, we are
bound by these 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 our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super.
2012) (citations omitted).
Here, appellant complains that the suppression court erred in denying
appellant’s suppression motion because the investigatory detention and
subsequent frisk were not supported by reasonable suspicion, there was an
insufficient basis under the plain feel rule for the officer to seize a plastic bag
containing narcotics from appellant’s person, and the police lacked probable
cause to take appellant to the police station for fingerprinting and an
identification check. These issues constitute purely factual issues on appeal.
As noted in McAdoo, supra, this court is bound by the suppression court’s
factual findings so long as the record supports those findings.
Our careful review of the record reveals that Officer McPhillips’
testimony, found credible by the suppression court, provides ample support
for the suppression court’s factual determinations. Specifically, appellant’s
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clothing and proximity to the burglary location justified the officer’s
encounter in the bar. This coupled with appellant’s failure to provide
identification outside of the bar supported the reasonable suspicion
necessary for further investigation and detention. The information regarding
the theft of guns in the robbery justified the Terry frisk, and the experience
of Officer McPhillips allowed him to immediately identify contraband on plain
feel. Following the discovery of the contraband, nothing further was
required to support arresting appellant, and he was properly taken into
custody for identification and fingerprinting. We are bound to those
determinations, and, therefore, find that the suppression court did not err in
denying appellant’s motion to suppress evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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