J-S23010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW LAMAR COOPER
Appellant No. 1080 EDA 2016
Appeal from the Judgment of Sentence November 18, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004711-2014
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 26, 2017
Appellant, Andrew Lamar Cooper, appeals from the judgment of
sentence entered on November 18, 2015, following his jury trial convictions
for aggravated assault, robbery, conspiracy, possessing an instrument of
crime,1 and other related firearm offenses. We affirm.
The trial court set forth the facts of this case as follows:
On May 27, 2014, at 8:44 a.m., Norristown Police Officer
Kevin Fritchman saw a gold Honda CR-V automobile on the
100 block of Wayne Avenue in the borough of Norristown.
At first it appeared unoccupied, but Officer Fritchman then
saw two black males in the Honda. One was [A]ppellant,
who was seated on the driver’s side. Officer Fritchman did
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1
18 Pa.C.S.A. §§ 2702, 3701, 903, respectively.
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not approach the vehicle; as he testified, he had no reason
to do so.
After Officer Fritchman saw both occupants of the vehicle
enter 111 Wayne Avenue, he checked the license plate
number of the vehicle and learned it had been reported
stolen from Plymouth Township. Officer Fritchman then
drove around the block for a few minutes and saw the
vehicle again, just several blocks away from the 100 block
of Wayne Avenue, at a stop sign at Powell and Spruce
Streets in Norristown. Appellant was in the passenger seat
of the automobile. Officer Fritchman then stopped the
Honda, but the driver and [A]ppellant fled on foot. After a
brief chase, [A]ppellant was apprehended and taken to
Norristown Police Department on charges related to theft of
the motor vehicle.
Trial Court Opinion, 5/27/2016, at 5-6.
Thereafter, “while he was in custody, [Appellant] gave [police] a
detailed statement in which he confessed to shooting [a convenience store
clerk] during [a] robbery[.]” Id. at 2. More specifically, the trial court
recited:
[The victim was] working at a convenience store in the early
morning hours of April 30, 2014, [when] a masked man
wearing gloves entered, pointed a gun at him, and
demanded money. Other men entered the store and bound
him with plastic zip ties. The masked man, whose height
and complexion matched [A]ppellant’s, shot [the victim] in
frustration when [the victim] was unable to open the cash
register.
The robbers committed an almost-perfect crime by leaving
behind almost no forensic evidence with which police could
have identified them. The police detectives who
investigated the crime recovered a bullet fragment from
[the victim’s leg] but could not determine whether it was
.38 caliber or .357 caliber ammunition. They also recovered
a stolen green Honda that they believed [was] driven by the
robbers. Inside the Honda the detectives found a backpack
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and a glove; and inside the backpack were zip ties similar to
the ones used to restrain [the victim], and more gloves.
The detectives did not obtain any fingerprint or DNA
evidence. [However, Appellant’s statement to police after
his arrest on charges related to theft of a motor vehicle]
corroborated the evidence collected by the detectives [in
the robbery matter].
Id. at 2.
In connection with the robbery, the Commonwealth charged Appellant
with the aforementioned crimes. Prior to trial, Appellant filed a motion to
suppress all of the evidence obtained from the vehicle stop, alleging the
police lacked reasonable suspicion or probable cause to believe criminal
activity was afoot. Appellant also argued that his statement to police was
the product of unreasonable police delay and obtained in violation of his due
process rights. On August 26, 2015, the trial court held a suppression
hearing and denied relief. The matter immediately proceeded to a jury trial.
On August 27, 2015, the jury convicted Appellant of the previously
mentioned offenses. On November 18, 2015, the trial court sentenced
Appellant to an aggregate term of 15 to 30 years of imprisonment. This
timely appeal resulted.2
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2
The trial court granted Appellant nunc pro tunc relief to file a
post-sentence motion, and later a supplemental post-sentence motion. By
order entered March 15, 2016, the trial court denied Appellant’s
post-sentence motions. On March 31, 2016, Appellant filed a notice of
appeal. On April 6, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on May 27, 2016.
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On appeal, Appellant presents the following issues3 for our review:
I. Whether the trial court committed an error of law
and/or abused its discretion in denying [Appellant’s]
motion to suppress his arrest and the subsequent
poisoned fruit thereof where police did not possess
probable cause to believe that he had committed a
crime[?]
II. Whether the trial court committed an error of law
and/or abused its discretion in denying [Appellant’s]
motion to suppress his statement to police where the
totality of the circumstances surrounding the taking of
the statement render the statement involuntary[?]
Appellant’s Brief at 4 (complete capitalization omitted; roman numerals
supplied).
In his first issue presented, Appellant contends that “to be
constitutionally valid, at the time of his arrest, police were required to
possess probable cause that Appellant [] either stole the vehicle, or was in
possession of a vehicle that he knew was stolen.” Id. at 12. Appellant
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3
Appellant presented two additional issues before the trial court that he
does not raise currently on appeal. Appellant challenged: 1) his convictions
as against the weight of the evidence and, (2) the discretionary aspects of
his sentence, more specifically, that his aggregate sentence was
unreasonable and the trial court failed to consider his personal history.
Appellant has abandoned these issues on appeal by failing to provide any
discussion of the claims with citation to relevant authority, and, thus, we
consider them waived. See Commonwealth v. Johnson, 985 A.2d 915,
924 (Pa. 2009) (citation omitted) (“where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that
claim is waived.”).
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claims that when police first saw him in the vehicle, he was “in the driver’s
seat of a stationary, parked vehicle with a second occupant in the front
seat.” Id. Citing this Court’s decision in In Interest of Scott, 566 A.2d
266 (Pa. Super. 1989), Appellant claims that “a review of the facts as
testified [to] by Officer Fritchman demonstrates unequivocally that Appellant
[] was never seen driving the stolen vehicle” and “this mistake of fact is
highly material to the determination of whether Officer Fritchman possessed
probable cause to believe that Appellant [] was in possession of the stolen
vehicle.” Id. at 14. Moreover, Appellant argues that since he “was actually
seated in the passenger seat at the time the vehicle was stopped[,]” there
was no evidence to suggest that he was in control of the stolen vehicle. Id.
at 15. Appellant further claims the suppression court erred by considering
his flight as consciousness of guilt, because “Officer Fritchman attempted to
arrest Appellant [] before he fled.” Id. (emphasis in original).
This Court applies a well-settled standard when reviewing the denial of
a motion to suppress evidence:
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
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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. Jones, 121 A.3d 524, 526–527 (Pa. Super. 2015)
(citations and brackets omitted).
An officer has probable cause to make a warrantless arrest
when the facts and circumstances within the police officer's
knowledge and of which the officer has reasonably
trustworthy information are sufficient in themselves to
warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.
Probable cause justifying a warrantless arrest is determined
by the totality of the circumstances. Furthermore, probable
cause does not involve certainties, but rather the factual
and practical considerations of everyday life on which
reasonable and prudent persons act.
Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012) (citations
and ellipsis omitted).
Moreover, we have held:
Probable cause means only the probability and not a prima
facie showing of criminal activity. It is, of course, less than
evidence which will justify a conviction. Once probable
cause is established, it does not dissipate simply because
the suspect is not charged with the particular crime which
led to the finding of probable cause.
Commonwealth v. Canning, 587 A.2d 330, 332 (Pa. Super. 1991)
(citation omitted).
Here, the trial court determined:
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Officer Fritchman had probable cause to stop the [gold
Honda] because he knew at the time it had been reported
stolen. He had seen [A]ppellant in the driver’s seat when
he first spotted the vehicle, and he found [A]ppellant in the
passenger’s seat when he seized it. Therefore, he had
probable cause to believe [A]ppellant had committed the
felony of receiving stolen property.
Trial Court Opinion, 5/27/2016, at 6.
We discern no abuse of discretion or error of law in denying
suppression. Here, there is no dispute that the vehicle at issue was stolen
and that police had obtained that information prior to the vehicular stop. At
that point, police had reason to believe that criminal activity was probably
afoot. We reject Appellant’s reliance on In Interest of Scott to suggest
that Officer Fritchman possessed insufficient knowledge of facts and
circumstances to establish probable cause. In Interest of Scott dealt with
the sufficiency of the evidence to support juvenile adjudications for receiving
stolen property and unauthorized use of a motor vehicle. In contrast,
probable cause means only the probability of criminal activity. It is less
than evidence which will justify, or sufficiently support, a conviction. Here,
the facts and circumstances within the police officer's knowledge, i.e.
trustworthy information that the automobile was stolen and direct
observation of Appellant in the driver’s seat, were sufficient to warrant the
belief that a criminal offense had been committed by Appellant. The
suppression court's factual findings are supported by the record and the
legal conclusions drawn from those facts are correct. Because Appellant’s
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arrest was legal and the evidence obtained therefrom was properly obtained,
we discern no abuse of discretion or error of law in denying Appellant’s
motion for suppression based upon the vehicle stop.
“Next, Appellant [] challenges the trial court’s denial of his motion to
suppress his statement to police where the totality of the circumstances
surrounding the taking of his statement rendered it involuntary.” Id. at 17.
Here, Appellant claims “[t]he Commonwealth failed to establish that the
physical environment surrounding Appellant[’s] statement was not coercive,
particularly with regard to the length of [] detention prior to giving the
statement and the duration and means of his interrogation, including tactics
employed with the purpose of draining his resistance to suggestion and
coercion.” Id. at 18. Appellant argues that questioning “did not begin until
nearly eight (8) hours after his arrest” while the police “executed a search
warrant at Appellant’s home.” Id. at 19-20. Appellant argues, however,
that, “the warrant and ensuing search were not aimed at obtaining evidence
in support of Appellant’s arrest for possession of a stolen car – the crime for
which Appellant was being held.” Id. at 20.
Regarding the voluntariness of a statement to police, our Supreme
Court has stated:
The test for determining the voluntariness, and thus the
admissibility, of an accused's statement is the totality of the
circumstances surrounding the statement. The mere fact
that there is some passage of time between when an
accused is arrested and when he or she gives an inculpatory
statement does not constitute grounds for suppression of
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the statement. This Court has set forth the following
numerous factors that should be considered under a totality
of the circumstances test to determine whether a statement
was freely and voluntarily made: the duration and means of
interrogation, including whether questioning was repeated,
prolonged, or accompanied by physical abuse or threats
thereof; the length of the accused's detention prior to the
confession; whether the accused was advised of his or her
constitutional rights; the attitude exhibited by the police
during the interrogation; the accused's physical and
psychological state, including whether he or she was
injured, ill, drugged, or intoxicated; the conditions
attendant to the detention, including whether the accused
was deprived of food, drink, sleep, or medical attention; the
age, education, and intelligence of the accused; the
experience of the accused with law enforcement and the
criminal justice system; and any other factors which might
serve to drain one's powers of resistance to suggestion and
coercion.
Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (internal citation
omitted).
Important to this case, in Bryant, the defendant argued that his
statement was involuntary because he was in isolation in police custody for
over thirty hours. Id. at 725. In examining all of the factors listed above,
the Bryant Court noted that “[a]lthough [Bryant] was held for a lengthy
period of time prior to giving his inculpatory statement, part of the reason
for this was the enormous amount of evidence potentially relevant to the
murders that the detectives were continuing to analyze.” Id. The Bryant
Court ultimately determined that suppression was unwarranted. Id.
Here, the trial court determined that Appellant’s statements to police
were voluntary under the totality of the circumstances. Regarding the
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duration of the interrogation, the trial court rejected Appellant’s suggestion
that police arrested him and delayed his processing and arraignment to
facilitate his interrogation. See Trial Court Opinion, 5/27/2016, at 8.
Instead, the trial court determined that police, in furthering their
investigation, “worked as quickly and efficiently as they could, under the
circumstances, to obtain and execute [a search] warrant [of Appellant’s
home].” Id. The trial court also noted that police advised Appellant of his
constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)
prior to making the statement at issue. Id. at 8-9. Police gave Appellant a
bathroom break, offered him food, and provided him with a beverage. N.T.,
8/26/2015, at 41. Moreover, Appellant “had been arrested for robbery in
2008, had given a statement, and [] that statement [was] introduced into
evidence against him at trial[, thus,] demonstrat[ing] his understanding and
familiarity with speaking to law enforcement officers[, which] supports the
inference that [the] statement [at issue] was knowing, voluntary and
intelligent.” See Trial Court Opinion, 5/27/2016, at 9. Finally, upon further
review of the certified record, there was no evidence presented at the
suppression hearing that police physically abused or threatened Appellant or
that Appellant was injured, ill, drugged, or intoxicated during the interview.
Based upon all of the foregoing evidence and our standard of review,
we discern no abuse of discretion or error of law by the trial court in finding
Appellant’s statement to police was knowing, voluntary, and intelligent. The
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duration of the interrogation was one of many factors for the trial court to
consider. Ultimately, the trial court determined that the length of time was
justified in light of the extensive ongoing criminal investigation, rather than
a strategy to force a confession from Appellant. Mere passage of time was
not enough to render Appellant’s statement involuntary in light of an
examination of the other relevant factors at play. Hence, we discern no
abuse of discretion or error of law in denying suppression of Appellant’s
statement to police. Accordingly, Appellant’s second argument fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2017
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Com. v. Cooper, A.
Combined Opinion