J-A19038-19
2019 PA Super 297
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LINZIE BROGDON :
:
Appellant : No. 1276 EDA 2018
Appeal from the Judgment of Sentence April 6, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001708-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED OCTOBER 03, 2019
Appellant, Linzie Brogdon, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia following his conviction
at a bench trial on the charges of persons not to possess firearms, firearms
not to be carried without a license, carrying firearms on a public street, and
resisting arrest.1 After a careful review, we affirm.
The relevant facts and procedural history are as follows: During the
evening of October 29, 2016, on the 2900 block of Howard Street in
Philadelphia, John Gonzalez was robbed at gunpoint. Appellant was arrested
in connection with the robbery, and on July 10 and 14, 2017, Appellant,
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1 18 Pa.C.S.A. §§ 6105, 6106, 6108, and 5104, respectively.
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* Former Justice specially assigned to the Superior Court.
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represented by counsel, litigated a motion to suppress the physical evidence
seized by the police.2
At the suppression hearing, the Commonwealth presented the testimony
of Police Officer Stephen Bennis and Detective Matthew Hagy.3 Specifically,
Officer Bennis testified that, on October 29, 2016, “there was a robbery, point-
of-gun, at the 2900 block of North Howard[.]” N.T., 7/10/17, at 8. Officer
Bennis described the 2900 block of Howard Street as “[o]ne of the most
violent, high drug areas in the 25th District and probably in the City.” Id. at
17.
On October 30, 2016, Detective Hagy and a sergeant informed Officer
Bennis that, in connection with the robbery, the police were attempting to
“identify an offender who went by the nickname of Fifty. And they provided
[Officer Bennis with] a physical description of a tall, black male, approximately
6’4”/6’5”.” Id. at 9. Officer Bennis testified that, based on the information
provided to him, he had “an idea who they were talking about.” Id.
Specifically, Officer Bennis indicated that, in reference to the 2900 block
of Howard Street, he was familiar with Appellant, who matched the description
provided by Detective Hagy and the sergeant. Id. Officer Bennis explained
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2 The certified record contains neither a pre-trial suppression motion nor a
docket entry related to the filing thereof. However, this Court has been
provided with the transcripts related to Appellant’s litigation of his suppression
motion.
3 Appellant presented no witnesses.
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that, during the past three years of his career, he has routinely patrolled
Howard Street and, approximately once or twice a day, he observes Appellant
in the 2900 block of Howard Street near the Chinese store or the bodega. Id.
at 10, 17. Officer Bennis indicated Appellant resides on the 2800 block of
Howard Street, which is just one block south of where the robbery occurred.
Id. at 10.
Officer Bennis testified he provided Detective Hagy and the sergeant
with information regarding Appellant, and at some point during his tour of
duty on October 30, 2016, he returned to the police station where his fellow
police officers informed him witnesses had positively identified Appellant as
being involved in the robbery. Id. Thereafter, at around 9:00 p.m. on
October 30, 2016, as Detective Hagy and the sergeant were in the area of the
robbery attempting to recover video, they observed Appellant. Id. at 11.
Accordingly, they provided “flash information”4 indicating they had observed
the male, Appellant, who is also known as “Fifty.” Id. Using the police radio,
Officer Bennis asked for Appellant’s specific location, and the sergeant
indicated Appellant was “in the area of A and Tusculeum[,]” which is
approximately two blocks from the 2900 block of Howard Street. Id.
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4 “Flash information” is generally based on a report from investigating officers
and is broadcast to other police units in the district. Commonwealth v.
Jackson, 519 A.2d 427, 431 (Pa.Super. 1986).
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Officer Bennis and his partner proceeded to the 2900 block of Howard
Street where they saw Appellant travelling southbound on a bicycle. Id.
Officer Bennis and his partner exited their patrol vehicle, stopped Appellant,
removed him from the bicycle, and walked him towards the police vehicle. Id.
at 11-12. As the officers escorted Appellant towards the back of the police
vehicle, Appellant “locked up his arms and began reaching towards his jacket,
actively resisting [the officers’] attempts to place him into custody.” Id. at
12. As the two officers struggled to place handcuffs on Appellant, the trio fell
to the ground, at which point Officer Bennis’ partner placed Appellant’s left
hand into a handcuff. Id. As the officers attempted to place the handcuff on
Appellant’s right hand, Appellant continued to struggle and reach into his
jacket. Id. With the additional assistance of Detective Hagy and the sergeant,
who had arrived on the scene, the officers handcuffed Appellant’s right hand
behind his back, at which point a firearm fell out of Appellant’s jacket. Id. at
13.
The officers retrieved the firearm from the ground and discovered it was
loaded with one live round in the chamber and four in the magazine. Id. at
14. The officers then searched Appellant’s person and recovered thirteen
clear, ziplock packets containing a blue glassy insert. The inserts were
stamped “PR,” and they contained an off-white powdery substance. Id. The
police also seized a red and black mountain bicycle, which Appellant had been
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riding, and his canvas shoulder bag, as well as $36.00 from Appellant’s
person. Id. at 14-16.
On cross-examination, Officer Bennis confirmed that, when he and his
partner saw Appellant on the bicycle during the evening of October 30, 2016,
they were in a marked patrol car. Id. at 19. Appellant was biking southbound
on Howard Street while the officers were driving northbound. Id. Officer
Bennis confirmed that he and his partner approached Appellant because they
believed he had been involved in the previous night’s robbery. Id. at 20.
Officer Bennis indicated the officers did not approach Appellant with guns
drawn; but rather, Officer Bennis stopped Appellant by quickly exiting the
police vehicle and stepping in front of the bicycle, which Appellant was riding.
Id. at 21. Officer Bennis confirmed that Appellant stopped the bicycle and
Appellant dismounted with the officer “maintaining a hold on him.” Id. at 22.
Appellant then dropped the bicycle to one side and, as the officers attempted
to handcuff him, Appellant struggled while attempting to reach into his jacket.
Id. at 22-23. Officer Bennis reiterated that, during the struggle, a loaded
handgun fell out of Appellant’s jacket. Id. at 24.
On redirect-examination, Officer Bennis explained that the handgun fell
out of Appellant’s left coat pocket, which was the pocket that Appellant kept
attempting to reach into during the struggle. Id. at 25. On recross-
examination, Officer Bennis admitted that, prior to stopping Appellant, he did
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not observe a “bulge” in Appellant’s jacket; however, he testified “the
interaction went from casual to fighting within a second or so.” Id.
Detective Hagy testified that he was the lead investigator assigned to
the robbery case, and after gathering information from the victim, Mr.
Gonzalez, he interviewed Reginald Carroll at approximately 4:00 a.m. on
October 30, 2016. N.T., 7/14/17, at 6-7. Mr. Carroll informed Detective Hagy
that “a male with the nickname of Fifty” was involved in the robbery; Mr.
Carroll described “Fifty” as a black male who was 6’5” tall. Id. at 7, 10.
Moreover, on October 30, 2016, at approximately 5:45 p.m., a witness, Anna
Gomez, arrived at the police station of her own volition, and in the presence
of Detective Hagy, she reported that “three males [were] involved [in the
robbery] and the male that pushed John Gonzalez off the bike, his nickname
was Fifty.” Id. at 9.
Detective Hagy testified that, in response to Mr. Carroll and Ms. Gomez
informing him a man with the nickname of “Fifty” was involved in the robbery,
he spoke with Officer Bennis, who routinely patrolled the area where the
robbery occurred. Id. Detective Hagy indicated that:
Based on the flash and the nickname, [Officer Bennis] gave
us the name of a male by the name of [Appellant]—I believe he
just said by the [last] name of Brogdon. I was able to go into the
police system and I found a male by the name of Brogdon who
lived at 2955 Howard Street and also the male was approximately
6’5”. Based on that, I developed two photo arrays with
[Appellant] as one of the males.
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Id. at 10. Detective Hagy confirmed that Appellant matched the description
provided by Mr. Carroll. Id. at 11.
Detective Hagy testified a fellow officer showed the photo arrays to Ms.
Gomez at 7:30 p.m. and to Mr. Carroll at 7:55 p.m. on October 30, 2016. Id.
at 12. The fellow officer reported that both individuals chose Appellant’s photo
from the array. Id. at 12-13. Detective Hagy then informed Officer Bennis
and his partner of the positive identifications and requested they be on the
lookout for Appellant, who was considered to be armed. Id. at 13. Meanwhile,
Detective Hagy, along with the sergeant, proceeded to the Chinese store on
the corner of Howard and Cambria to determine whether there was video of
the robbery. Id. at 14.
On cross-examination, Detective Hagy confirmed that, shortly after the
robbery, he interviewed Mr. Gonzalez, who reported he was robbed by two
males, one of whom pointed a handgun at him. Id. at 15-16. Mr. Gonzalez
reported that one of the men was wearing black pants and a black hoodie
while the other man was wearing blue jeans and a black hoodie. Id. Mr.
Gonzalez indicated the two men had taken his wallet and cell phone. Id.
Detective Hagy confirmed that Mr. Gonzalez told him he was pushed off of his
bicycle during the robbery, he ran away on foot, and he flagged down a police
vehicle. Id. at 17. The police then transported Mr. Gonzalez back to the
scene. Id.
Upon further cross-examination, Detective Hagy testified as follows:
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Q. While they were transporting [Mr. Gonzalez] back to the scene,
he actually points out to those officers, there is the man who
pointed the gun at me, right?
A. Correct, he was actually in the back of our car at that point.
He was too afraid to walk down the street on his own, so we put
him in our unmarked car. While we were at the scene, and I was
taking photographs of the scene and processing the scene, [Mr.
Gonzalez] saw one of the males that he thought was involved,
yes.
Q. Who was in the car that he pointed that male out to, if you
were checking out the scene?
A. There were two officers that were at the scene with me—I
would have to look, I forget their names—who drove off and
stopped the male. And then they came over police radio and
asked us to take [Mr. Gonzalez] to that location, I think it was the
next block over. We went to that location and positively ID’d one
of the males.
Q. The male that [Mr. Gonzalez] identified as having robbed [him
was] Reginald Carroll, correct?
A. That is correct.
Q. Mr. Carroll was taken to East Detectives and also gave a
statement?
A. Yes.
Q. That statement was videotaped, correct?
A. That’s correct.
Q. There are no written records of that? There is not a 75483 for
that, right?
A. No.
Q. In the course of that interview, Mr. Carroll told either you or
other officers involved in the case that it was [Appellant], also
known as Fifty, who was involved in the robbery of [Mr. Gonzalez],
right?
A. That is correct.
Q. In other words, the very individual who has been accused by
the complainant of robbing him says, no, it wasn’t me, it was Fifty?
A. Yes, and he gave a second male also.
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Q. And you have reason to believe that the second male is Kareem
Davis?
A. That’s correct.
Q. At that point, the only person that you have identifying
[Appellant] as having been involved in this robbery is the one who
is actually accused by the complainant, right?
A. At that point, yes.
THE COURT: At what point are we talking about? You said
at this point, I am trying to figure out how it pertains to the stop.
THE WITNESS: At 4:00 a.m., Reginald Carroll was
interviewed and the post-[M]iranda statement—
THE COURT: 4:00 a.m. on the 30th?
THE WITNESS: Yes, of the 30th.
THE COURT: There was a stop that evening?
THE WITNESS: Yes, he said a male by the name of Fifty.
And then Anna Gomez showed up later that night at 5:45 p.m.
She just showed up and—
THE COURT: I just wanted to get my timeline straight.
[DEFENSE COUNSEL]: May I continue, Your Honor?
THE COURT: Of course.
Q. Detective, it is about 12/13 hours after Reginald Carroll gives
his statement that Ms. Gomez walks into East Detectives, right?
A. Yes.
Q. I think you said you were present for the taking of the
statement by Detective Curet?
A. Yes.
Q. Nowhere in this interview do we learn anything about the
relationship between Ms. Gomez and Mr. Carroll, correct?
[ADA]: Objection to relevance.
THE COURT: Overruled.
THE WITNESS: Carroll and—no, no. She was a friend of
[Mr.] Gonzalez.
Q. I phrased the question slightly awkward. I think you
understood it and answered it properly, but suffice [it] to say, you
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do not know what the relationship is at this point between—and
by this point, I mean at the taking of the statement—
THE COURT: 4:00/5:00 in the morning on the 30th?
[DEFENSE COUNSEL]: 5:00 in the evening, Your Honor.
THE COURT: You are talking about [Ms.] Gomez?
THE WITNESS: Yes, [Ms.] Gomez came in at 5:45 p.m.
Q. When Anna Gomez gives her statement, you do not know about
the relationship between her and Mr. Carroll?
A. No.
Q. Ms. Gomez told you that contrary to what the complainant had
told you, that there were actually three males involved in robbing
[Mr.] Gonzalez, the complainant, right?
A. According to [Ms. Gomez], [Appellant] was the one that pushed
[Mr. Gonzalez] off the bike and was going through the stuff
robbing him. The other two males chased him and she heard
gunshots.
…
Q. Ms. Gomez described the two—actually Ms. Gomez described
the two males that chased after [Mr. Gonzalez] as being about
5’5” in height, correct?
A. Yes.
Q. Fair to say that [Appellant] is significantly taller than that,
correct?
A. No, she said that two males that chased [Mr. Gonzalez] were
about 5’5”. She said that the male that pushed him off the bike
was six-feet tall.
Q. I am just establishing for the record that [Appellant] is well
over six-feet tall, correct?
A. Yes.
Id. at 17-22. Detective Hagy confirmed that the police were unsuccessful in
retrieving video of the robbery. Id. at 23.
Based on the aforementioned, the suppression court denied Appellant’s
motion to suppress the physical evidence seized by the police. Specifically,
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the suppression court concluded Officer Bennis had probable cause to arrest
Appellant and properly search Appellant’s person incident to the arrest. On
November 27, 2017, Appellant proceeded to a bench trial at which Officer
Bennis was the sole witness. At the conclusion of the trial, the trial court
convicted Appellant of the offenses indicated supra, and on April 6, 2018, the
trial court sentenced Appellant to an aggregate of four years to eight years in
prison, to be followed by five years of probation. This timely, counseled appeal
followed, and all Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant presents the following issue in his “Statement of
the Questions Involved” (verbatim):
I. Did not the lower court err by denying appellant’s motion to
suppress physical evidence where the police officer who seized
appellant and arrested him did not himself have independent
reasonable suspicion or probable cause sufficient to detain and
arrest, but did so based upon information supplied by a detective
who himself did not have reasonably trustworthy evidence
supporting the claim that appellant had been involved in a
robbery?
Appellant’s Brief at 3.
We consider Appellant’s question mindful of the following:
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
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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 [legal
conclusions of the suppression court] are subject to plenary
review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (brackets
and citation omitted).
On appeal, in the argument portion of his brief, Appellant concedes that
Officer Bennis was permitted to make a warrantless arrest of Appellant, and
search him incident to the arrest, if Detective Hagy had probable cause to
arrest Appellant. Appellant’s Brief at 11-12, 15-16 (citing Commonwealth
v. Yong, 644 Pa. 613,
177 A.3d 876 (2018) (holding that where there is
evidence two officers are working as a team, and one of them has probable
cause to stop or arrest an individual, that knowledge can be imputed to the
officer who makes the arrest, even without evidence that it was actually
conveyed); Commonwealth v. Kenney,
449 Pa. 562,
297 A.2d 794 (1972)
(holding the collective knowledge doctrine dictates that an officer making a
warrantless arrest based on orders from a superior officer need not have
probable cause so long as the superior officer had probable cause for the
arrest)). That is, Appellant concedes that Officer Bennis was permitted to rely
on the information known by Detective Hagy in effectuating the arrest of
Appellant without himself independently viewing criminal activity. See
Appellant’s Brief at 11-12, 15-16.
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However, Appellant contends Detective Hagy had no such probable
cause to arrest Appellant. In this vein, Appellant avers the information
obtained by Detective Hagy from Mr. Carroll and Ms. Gomez was “not
reasonably trustworthy” since they had an obvious “corrupt motive” in
identifying Appellant as one of the robbers (i.e., Mr. Carroll was identified as
one of the perpetrators by the victim and Ms. Gomez was allegedly in a
romantic relationship with Mr. Carroll). See id. Assuming, arguendo, that
Officer Bennis subjected Appellant to a custodial detention when he stepped
in front of Appellant’s bicycle, maintained a hold on Appellant, and handcuffed
him, we agree with the trial court that the custodial detention was supported
by the necessary probable cause. See Commonwealth v. Thompson,
604
Pa. 198,
985 A.2d 928 (2009) (holding law enforcement officers must have
probable cause to conduct an arrest).
Probable cause is made out when the facts and
circumstances which 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 man of reasonable caution
in the belief that the suspect has committed or is committing a
crime. 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.
Thompson, 604 Pa. at 931,
985 A.2d at 931 (citations, quotations, and
quotation marks omitted). “Probable cause does not require certainty, but
rather exists when criminality is one reasonable inference, not necessarily
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even the most reasonable inference.” Commonwealth v. Spieler, 887 A.2d
1271, 1275 (Pa.Super. 2005).
Here, in concluding probable cause existed to arrest Appellant, the
suppression court relevantly indicated the following:
[T]he Commonwealth established that[,] following the
robbery of John Gonzalez, police apprehended Reginald Carroll.
[Mr.] Gonzalez accused [Mr.] Carroll of participating in the
robbery. Police also interviewed Anna Gomez, who told police that
Appellant participated in the robbery. Both [Mr. Carroll and Ms.
Gomez] selected photographs of Appellant [from a photo array].
This information was sufficient to establish probable cause
regardless of any alleged relationship and [Mr.] Carroll’s purported
involvement in the robbery.
With respect to Anna Gomez, the Courts of this
Commonwealth have recognized that a citizen informer, identified
eyewitness[,] or ordinary citizen reporting his or her observations
of a crime stands on a different ground than a police informer.
See Commonwealth v. Weidenmoyer, 518 Pa. 2, 9,
539 A.2d
1291, 1295 (1988) (“It may be fairly stated that where an
informant is not a paid, unknown tipster but instead an identified
eyewitness to a crime who voluntarily reports observations to the
police, the trustworthiness of such a person may be presumed.”);
Commonwealth v. Lyons, [622 Pa. 91, 112,]
79 A.3d 1053,
1064-65 (2013) (“This Court has repeatedly rejected the
argument that an officer relying on statements from an ordinary
citizen, in contrast to a police informant, must establish the
citizen’s credibility and reliability.”). Indeed, as [the appellate
court] has held, such citizen reports are “particularly compelling”
because “[m]embers of a particular neighborhood are uniquely
well-qualified to observe what is going on in their community, and
should be supported in reporting [criminal] activity to the police.”
Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa.Super.
1992).
Thus, based solely on the information received from Anna
Gomez, police had probable cause to arrest Appellant.
Nevertheless, they had additional information, namely, the
information from an alleged accomplice to the robbery. The law
is clear that uncorroborated information from an accomplice
establishes probable cause to arrest. Commonwealth v.
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Stokes, [480 Pa. 38,]
389 A.2d 74, 76 (1978) ([holding] it is well
settled that the uncorroborated confession of an accomplice which
implicates the suspect will supply the probable cause for an arrest
warrant).
In numerous cases, information of the kind introduced
during the suppression hearing herein has been deemed sufficient
to sustain an order denying a motion to suppress. See
Commonwealth v. Bryant, 503 A.2d 39 (Pa.Super. 1986)
([holding] probable cause to arrest [the] defendant for robbery of
bar where suspect in different robbery told police that [the]
defendant’s accomplice had admitted [to the] robbery of [the]
bar); Commonwealth v. Rutigliano, 456 A.2d 654 (Pa.Super.
1983) (where a neighbor volunteered information about identity
of burglar, probable cause to arrest [the] defendant [was]
established, and there was no need to establish [the] neighbor’s
credibility).
Accordingly, for the reasons stated,…the [suppression]
court find[s] Appellant’s [suppression] claim lacking in merit
because the police certainly had sufficient information to establish
probable cause to arrest Appellant.
Suppression Court Opinion, filed 12/6/18, at 6- 8 (some citations omitted).
We conclude the suppression court’s factual findings are supported by
the record, and we agree with the suppression court’s sound analysis. Smith,
supra. “While the [police] must have a reasonable belief in the probability of
criminal activity by the person to be arrested, the belief may rest solely in
information supplied by another person where there is a ‘substantial basis’ for
crediting that information.” Rutigliano,
456 A.2d at 657 (quotation marks
and quotation omitted). Here, the police had a “substantial basis” for crediting
the information provided by Ms. Gomez, whose trustworthiness as an
identified civilian witness may be presumed, as well as the information
provided by Mr. Carroll, an alleged accomplice of Appellant. See
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Commonwealth v. Harris, 176 A.3d 1009, 1017 (Pa.Super. 2017) (noting
“that information provided by certain classes of persons may be sufficient to
establish probable cause: the uncorroborated confession of an accomplice, or
the statement of a victim, or an eyewitness whose identity is known.”)
(citation omitted)).
Moreover, we note that we are not persuaded by Appellant’s argument
that the information provided by Ms. Gomez and Mr. Carroll should be deemed
“inherently untrustworthy” since there were discrepancies between their
statements of events as compared to Mr. Gonzalez’s statement of events. See
Appellant’s Brief at 14-15. As indicated supra, probable cause does not
require certainty, but rather a reasonable inference. See Spieler, supra.
Here, the suppression court did not err in concluding that, under the totality
of the circumstances, a reasonable inference that Appellant committed the
crime existed so as to establish probable cause to arrest him.5 See
Thompson, supra.
For all of the foregoing reasons, we affirm.
Affirmed.
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5 Having concluded the police had probable cause to arrest Appellant, we note
Appellant was properly searched incident to his arrest. See Commonwealth
v. Simonson, 148 A.3d 792 (Pa.Super. 2016) (explaining “search incident to
arrest” exception).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/19
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