J-S39030-20
2020 PA Super 224
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHESTER M. BRAME :
:
Appellant : No. 599 EDA 2020
Appeal from the Judgment of Sentence Entered January 9, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000905-2019
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
OPINION BY OLSON, J.: FILED SEPTEMBER 15, 2020
Appellant, Chester M. Brame, appeals from the January 9, 2020
judgment of sentence imposing an aggregate sentence of five to ten years’
incarceration following Appellant’s conviction, in a bench trial, of possession
with the intent to deliver a controlled substance (oxycodone), possession of a
controlled substance, possession of drug paraphernalia, fleeing or attempting
to elude a pursuing police officer, and tampering with physical evidence.1 We
affirm.
The trial court summarized the evidence and testimony adduced at
Appellant’s suppression hearing as follows:
On October 26, 2018, at approximately 2:50 [p.m.], officers from
[the] Cheltenham Township Police Department were conducting
surveillance at an apartment complex located at 46 Township Line
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), 75 Pa.C.S.A.
§ 3733(a), and 18 Pa.C.S.A. § 4910(1), respectively.
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Road, Cheltenham, Montgomery County[, Pennsylvania]. Officer
Chad Smith was stationed in the parking lot of the apartment
complex as part of a team [] conducting surveillance for an
arranged undercover drug transaction on a separate and
unrelated matter. He was working undercover walking his K9
partner around the parking lot as part of the surveillance team for
the planned event.
Officer Smith has specialized training in narcotics trafficking and
investigations. During his career, Officer Smith has been a
member of the Montgomery County drug task force, [a member
of] the Montgomery County East Division SWAT team, and [] a K9
handler for the last five [] years. He testified at the suppression
hearing to his extensive experience with illegal drug investigations
and arrests, specifically enumerating those involved with illegally
diverted prescription pills[,] such as oxycodone. Based on his
training in narcotics trafficking and investigations and based on
his experience as a Cheltenham [Township] police officer, Officer
Smith is familiar with how illegal narcotics, specifically oxycodone,
are packaged and sold. Officer Smith [] personally observed
hand-to-hand transactions involving pills and other drugs,
specifically having observed drug transactions whereby the dealer
tosses pills through a car window into the buyer's vehicle pulled
alongside.
Sergeant Joseph O'Neill was also working in plain clothes as part
of the surveillance for the unrelated matter in the area of 46
Township Line Road on October 26, 2018[,] at approximately
2:50 [p.m.]. He was positioned across the street from the parking
lot of the apartment complex in an unmarked police [vehicle]
equipped with lights and sirens. Sergeant O'Neill has been a police
officer for twenty [] years. He has been a member of the
Montgomery County drug task force since 2005. Sergeant O'Neill
testified to his extensive experience with illegal drug
investigations and arrests, specifically enumerating those involved
with illegally diverted prescription pills[,] such as oxycodone or
percocet. Based on his training in narcotics trafficking and
investigations and his experience as a [twenty]-year police
veteran, Sergeant O'Neill is familiar with how illegal narcotics,
specifically oxycodone, are packaged and sold. Sergeant O'Neill
testified that he [] previously purchased pills in an undercover
capacity. Sergeant O'Neill [] personally observed hand-to-hand
transactions involving pills and other illegal drugs, specifically
having observed drug transactions whereby the dealer tosses pills
through a car window into the buyer's vehicle pulled alongside.
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Sergeant O'Neill [] personally observed hand-to-hand drug
transactions at 46 Township Line Road on prior occasions.
Officer Smith and Sergeant O'Neill were both familiar with the
location of 46 Township Line Road due to prior drug investigations
and arrests. They knew that location to have a high volume of
drug activity. Specifically, Sergeant O'Neill testified that over the
course of his fifteen[-]year career[,] he has been personally
involved with at least 100 drug investigations or arrests for illegal
drug activity at that location. Officer Smith and Sergeant O'Neill
knew, based on their training and experience, that drug deals that
take place at that location or in the general Cheltenham area often
involve dealers from Philadelphia[, Pennsylvania] meeting with
buyers from the surrounding counties, specifically Bucks County,
[Pennsylvania] because of pricing and convenience of the meeting
location.
On October 26, 2018, at approximately 2:50 [p.m.], both Officer
Smith and Sergeant O'Neill, separately and independently of one
another, observed a silver Dodge minivan drive into the parking
lot at 46 Township Line Road and reverse into a parking spot at
the rear of the parking lot, far away from the entrance to the
apartment building. The man driving the [minivan] was identified
as Appellant[.] Appellant was the sole occupant of the [vehicle].
After he parked his vehicle, he remained inside.
Both officers noted that this behavior was of interest to them and
something they found unusual based on the fact that there were
available parking spaces closer to the entrance of the building.
Officer Smith was on foot approximately twenty [] feet from where
Appellant parked his vehicle. He could see clearly into Appellant's
vehicle through the windshield and front windows. Sergeant
O'Neill also had a clear view into the parking lot where Appellant
was located, but he noted that his view was occasionally
obstructed by passing vehicles.
After several minutes, Appellant pulled out of the parking spot and
[moved his vehicle] straight ahead into a different spot, which was
no closer to the front entrance. Appellant remained in his vehicle.
Both officers testified that this behavior was unusual and
suspicious. As such, they each focused their attention on
Appellant's vehicle, unsure if it [were] possibly connected to the
ongoing drug investigation for which they were [conducting
surveillance]. Officer Smith began to walk toward Appellant's
vehicle with his [K9 partner].
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A few moments later, Officer Smith and Sergeant O'Neill each
observed a second vehicle, driven by a female, pull into the
parking space directly adjacent to [] Appellant's [vehicle and] on
[the vehicle’s] passenger side. Officer Smith observed that the
passenger side window of [] Appellant's [vehicle] was down, and
the driver's side window of the female's [vehicle] was down. Both
Officer Smith and Sergeant O'Neill observed Appellant throw a
knotted plastic bag out of his passenger side window into the
female's vehicle through her driver's side window. Officer Smith
then observed the female driver throw loosely balled-up [United
States] currency into Appellant's [vehicle]. The female
immediately drove out of the parking lot. Officer Smith was
approximately ten [] to fifteen [] feet away from the vehicles when
he observed this transaction. Sergeant O'Neill was across the
street, utilizing binoculars. The officers observed that there was
no conversation between Appellant and the female, and neither
individual ever exited their vehicle or approached the apartment
building. Their entire interaction was very short, lasting
approximately twenty [] seconds, which short duration is
consistent with typical drug transactions.
Officer Smith and Sergeant O'Neill each ran the registration on
both vehicles. Appellant's vehicle was registered to a North
Philadelphia address, and the female's vehicle was registered to a
Bucks County address. This is consistent with the officers' prior
knowledge that drug deals that take place at this location or in the
general Cheltenham area often involve dealers from Philadelphia
meeting with buyers from the surrounding counties, specifically
Bucks County, because of pricing and convenience of the meeting
location.
Officer Smith approached Appellant's vehicle. He was on foot, in
plain clothes, and accompanied by his K9 [partner] on a leash.
When he encountered Appellant, who was seated in the driver's
seat of his vehicle, Officer Smith announced in a casual,
non-confrontational tone that he was a police officer and displayed
his badge. Appellant responded, "huh?" Officer Smith again
responded in a casual tone that he was a police officer. Appellant
then quickly reversed [his vehicle] out of the parking spot and
travelled at a high rate of speed away from Officer Smith and
toward the exit to the parking lot. Officer Smith never brandished
or reached for his firearm[,] which was concealed under his
clothing. Officer Smith never instructed Appellant to get out of
his vehicle, never told him he could not leave, nor did he block his
ability to exit in any way. Officer Smith did not verbally
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communicate to Appellant that he was in custody or under arrest.
At the moment when Appellant quickly pulled out of the parking
spot, police [vehicles] with lights and sirens activated entered the
parking lot in response to the other, unrelated drug investigation.
Sergeant O'Neill observed Officer Smith speaking with Appellant
at [Appellant’s] vehicle. Sergeant O'Neill activated his lights and
sirens to pursue Appellant's [vehicle], as he believed that
Appellant [] engaged in an illegal drug delivery. As he pulled into
the parking lot where Appellant was located, he saw Appellant's
[vehicle] backing out of the parking space at a "good speed" and
Officer Smith pointing at the [vehicle]. Multiple marked and
unmarked police [vehicles], some with lights and sirens activated,
pursued Appellant around the [apartment complex’s] parking
lot[.] Appellant did not immediately stop for the police, and a
brief pursuit ensued. During the pursuit, Appellant was finally
forced to stop his vehicle after nearly colliding head-on with a
police vehicle and was boxed in by police [vehicles].
Sergeant O'Neill approached Appellant's vehicle and observed
knotted up plastic bags with pills in them inside his [vehicle].
Appellant was taken into custody and placed under arrest. Police
obtained a search warrant for his vehicle, and recovered
approximately 235 pills later identified as oxycodone.
Trial Court Opinion, 4/28/20, at 2-9 (record citations and extraneous
capitalization omitted).
On October 26, 2018, Appellant was charged with the aforementioned
crimes.2 The Commonwealth filed a motion to consolidate the instant case
with the criminal charges filed against Appellant at docket number
CP-46-CR-0000904-2019 (“case 904-2019”), which the trial court granted on
____________________________________________
2 We note that the affidavit of probable cause attached to the criminal
complaint, in one instance, identified the occupant of the silver Dodge minivan
as “Christopher Brame.” Criminal Complaint, 10/26/18, at 8.
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July 22, 2019. Prior to consolidation, on July 10, 2019, Appellant filed an
omnibus pre-trial motion that included a motion to suppress the physical
evidence seized by the police during the October 26, 2018 episode.3 After a
hearing, the suppression court denied Appellant’s omnibus pre-trial motion on
September 27, 2019. Appellant subsequently agreed to a stipulated bench
trial, and on October 31, 2019, a bench trial was held. At the conclusion of
trial, the trial court found Appellant guilty of the aforementioned criminal
charges. On January 9, 2020, Appellant was sentenced to five to ten years’
incarceration for possession with the intent to deliver a controlled substance.
In addition, Appellant received a concurrent sentence of one to two years’
incarceration for fleeing or attempting to elude a pursuing police officer. This
appeal followed.4
Appellant raises the following issue for our review: “Did the suppression
court err by denying Appellant’s motion to suppress physical evidence?”
Appellant’s Brief at 3. Our standard of review and scope of review of a
challenge to the suppression court’s denial of a motion to suppress physical
evidence is well-settled.
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3 Our review demonstrates that the omnibus pre-trial motion included within
the record presented to this Court in the instant case relates to the matter
docketed in the trial court at case 904-2019. The suppression court explained
that the omnibus pre-trial motion relating to the instant case was erroneously
filed at the docket for case 904-2019. A copy of the omnibus pre-trial motion
related to the instant case, therefore, is not included in the certified record.
4 Appellant and the trial court complied with Pa.R.A.P. 1925.
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When we review the ruling of a suppression court[,] we must
determine whether the factual findings are supported by the
record. When it is a defendant who [] appealed, we must consider
only the evidence of the prosecution and so much of the evidence
for the defense as, fairly read in the context of the record as a
whole, remains uncontradicted. Assuming that there is support in
the record, we are bound by the facts as are found and we may
reverse the suppression court only if the legal conclusions drawn
from those facts are in error.
Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (citation omitted),
cert. denied,
140 S.Ct. 645 (2019). “As an appellate court, we are not bound
by the suppression court's conclusions of law; rather, when reviewing
questions of law, our standard of review is de novo and our scope of review is
plenary.” Hicks,
208 A.3d at 925 (original quotation marks and citation
omitted).
Here, Appellant challenges the suppression court’s characterization of
the initial encounter between Appellant and Officer Smith, arguing that this
interaction constituted an investigative detention, not a mere encounter, as
determined by the suppression court. Appellant’s Brief at 15-16. Appellant
contends the suppression court erred in determining that this initial encounter
was a mere encounter that required no reasonable suspicion on the part of
Officer Smith that criminal activity was afoot. Id. Rather, Appellant asserts,
“[b]y flashing his badge at [A]ppellant, Officer Smith conveyed to [A]ppellant
that he was not free to leave especially because simultaneously therewith
numerous marked police cars were streaming into the parking lot.” Id. at 15.
Appellant contends that because this initial encounter was an investigative
detention, and because Officer Smith lacked the requisite reasonable suspicion
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that criminal activity was afoot when the stop occurred, all physical evidence
seized by the officers should have been suppressed. Id. at 24.
The Commonwealth asserts that the suppression court correctly
determined that the initial encounter between Appellant and Officer Smith was
a mere encounter. Commonwealth’s Brief at 14. The Commonwealth
contends that when Officer Smith approached Appellant and displayed his
badge, this action by Officer Smith did not “transform the mere encounter into
an investigatory detention.” Id. at 15. The Commonwealth asserts that “at
the moment that [Appellant] and Officer Smith interacted, the police vehicles
were not present in the parking lot [and] that police vehicles entered the
parking lot after [Appellant] ended the encounter [with Officer Smith] by
reversing [his vehicle] out of the parking [space].” Id. at 18. Alternatively,
if the initial encounter [were] an investigative detention, the Commonwealth
argues that Officer Smith possessed reasonable suspicion to justify the
investigative detention. Id. at 20-27.
The Fourth Amendment to the United States Constitution, made
applicable to the states through the Fourteenth Amendment, and Article I,
Section 8 of the Pennsylvania Constitution protect a person from unlawful
searches and seizures.5 Our Supreme Court has long held that although the
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5 The Fourth Amendment provides,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
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Pennsylvania Constitution provides broader protection from unreasonable
searches and seizures than the United States Constitution, the Terry doctrine,
announced in the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), “sets
forth the reasonableness standard for Article I, [Section] 8 of the
Pennsylvania Constitution.” Hicks,
208 A.3d at 925, 940 (stating, “the Terry
doctrine unequivocally requires something suggestive of criminal activity
before an investigative detention may occur” (emphasis omitted)).
The Hicks Court explained the distinction between a mere encounter
and an investigative detention as follows:
[W]arrantless interactions between citizens and police officers fall
into three categories, distinguished one from another by
consideration of whether the citizen has been “seized” within the
meaning of the Fourth Amendment, the intrusiveness and extent
of the seizure, and the justification therefor. The first type of
interaction - a mere encounter - does not constitute a seizure. It
generally involves a request for information and requires no
particular suspicion of criminality because it carries no official
____________________________________________
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. CONST. amend. IV. The Pennsylvania Constitution provides,
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant.
PA CONST. art. I, § 8.
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compulsion to stop or to respond. During a mere encounter, as
long as the person to whom questions are put remains free to
disregard the questions and walk away, there has been no
intrusion upon that person's liberty or privacy as would under the
Constitution require some particularized and objective
justification.
We recognize only two types of lawful, warrantless seizures of the
person, both of which require an appropriate showing of
antecedent justification: first, an arrest based upon probable
cause; second, a [investigative detention] based upon reasonable
suspicion. Here, we are concerned with this latter type of
seizure - interchangeably labeled an “investigative detention,” a
“Terry stop,” or, when coupled with a brief pat-down search for
weapons on the suspect's person, a “stop and frisk.”
To maintain constitutional validity, an investigative detention
must be supported by a reasonable and articulable suspicion that
the person seized is engaged in criminal activity and may continue
only so long as is necessary to confirm or dispel such suspicion.
The asserted grounds for an investigative detention must be
evaluated under the totality of the circumstances. So long as the
initial detention is lawful, nothing precludes a police officer from
acting upon the fortuitous discovery of evidence suggesting a
different crime than that initially suspected[.] However, an
unjustified seizure immediately violates the Fourth Amendment
rights of the suspect, taints the evidence recovered thereby, and
subjects that evidence to the exclusionary rule.
Hicks, 208 A.3d at 927-928 (citations, original quotation marks, and original
brackets omitted). The reasonable suspicion standard allows “a police officer
to stop an individual based upon [‘]specific and articulable facts[’] and
[‘]rational inferences from those facts[’] that warrant a belief that the
individual is involved in criminal activity.”
Id. at 932 (citation and original
quotation marks omitted).
For purposes of the Fourth Amendment, a person is “seized”
when, “in view of all the circumstances surrounding the incident,
a reasonable person would have believed that he was not free to
leave.” United States v. Mendenhall, 446 U.S. 544, 554 []
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(1980). When a police officer “accosts an individual and restrains
his freedom to walk away, he [] ‘seized’ that person.” Brown[ v.
Texas], 443 U.S. [47,] 50 [(1979),] quoting Terry, 392 U.S. at
16[.] In assessing the impression that would be given to a
reasonable person, a court must determine “whether, taking into
account all of the circumstances surrounding the encounter, the
police conduct would ‘have communicated to a reasonable person
that he was not at liberty to ignore the police presence and go
about his business.’” Florida v. Bostick, 501 U.S. 429, 437 []
(1991)[,] quoting Michigan v. Chesternut, 486 U.S. 567, 569 []
(1988)[.]
Hicks, 208 A.3d at 926-927.
Initially, our review requires us to determine whether the record
supports the suppression court’s conclusion that the initial encounter between
Officer Smith and Appellant amounted to a mere encounter.6 We find the
record does not support the suppression court’s conclusion. Rather, we
discern that, as a matter of law, the initial encounter between Officer Smith
and Appellant amounted to an investigative detention because Appellant was
“seized” by Officer Smith at the time of his initial encounter.
The suppression court, in finding that Appellant was not seized by Officer
Smith, and that the initial encounter between Appellant and Officer Smith
amounted to a mere encounter, stated,
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6 The circumstances of the instant case are akin to an essay question from the
Pennsylvania bar exam in which one is left wondering if the circumstances of
the unrelated undercover drug operation act as a “red herring” or are a critical
factor for consideration. We discern the circumstances of the unrelated
undercover drug operation to be the latter to the extent that the actions of
the operation affected the mindfulness of the hypothetical reasonable person’s
understanding of his or her freedom to ignore the police and go about his or
her business, as discussed infra.
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The initial interaction between Officer Smith and Appellant, when
Officer Smith approached Appellant's vehicle, was a mere
encounter. Officer Smith was in plain clothes and casually
approached Appellant's vehicle on foot with his [K9 partner].
Officer Smith approached Appellant due to his reasonable belief
that [Appellant] just engaged in an illegal drug transaction with
the female driver. In order to identify himself as a police officer,
he produced his police badge. He did not use a confrontational or
abrupt tone with Appellant. Officer Smith never instructed
Appellant to exit his vehicle. [Officer Smith] did nothing to
prevent Appellant from leaving, nor did he communicate to
[Appellant] in any way that he was not free to leave. They
exchanged very few words until Appellant fled.
Trial Court Opinion, 4/28/20, at 11. In reaching its conclusion that the initial
encounter was a mere encounter, the suppression court failed to consider the
unfolding events of the unrelated undercover drug operation, substantiated
by Sergeant O’Neill’s testimony, and the effect those events had on Appellant’s
perception of his ability to end his encounter with Officer Smith, based upon
a reasonable person standard. See Commonwealth v. Lyles, 97 A.3d 298,
303 (Pa. 2014) (stating, “[w]hat constitutes a restraint on liberty prompting
a person to conclude that he is not free to ‘leave’ will vary, not only with the
particular police conduct at issue, but also with the setting in which the
conduct occurs” (original brackets omitted)), citing Chesternut,
486 U.S. at
573-574; see also Commonwealth v. Adams,
205 A.3d 1195, 1200 (Pa.
2019) (stating, “[t]he test, often referred to as the [‘]free to leave test,[’]
requires the court to determine whether, taking into account all of the
circumstances surrounding the encounter, the police conduct would have
communicated to a reasonable person that he was not at liberty to ignore the
police presence and go about his business” (emphasis added, citations and
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original quotation marks omitted)); Commonwealth v. Shabezz, 166 A.3d
278, 287-288 (Pa. 2017) (holding that a passenger in a vehicle is seized for
constitutional purposes when, in consideration of all of the circumstances
surrounding the encounter, the vehicle in which he or she is riding is stopped
by police), citing Brendlin v. California,
551 U.S. 249, 263 (2007).
Officer Smith was in plain clothes and located in the parking lot of the
apartment complex with his K9 partner as part of an undercover drug
operation that was unrelated to the incident involving Appellant. N.T.,
9/12/19, at 22-23. This undercover drug operation involved multiple police
officers and several marked and unmarked police vehicles that were
positioned in the surrounding area. Officer Smith initially testified that after
observing the alleged drug transaction between Appellant and the female
driver of a second vehicle, the female driver pulled out of her parking spot at
the same time the police responded in the unrelated undercover drug
operation. Id. at 26 (emphasis added) (stating, “as she was pulling out, that’s
when the takedown happened for the original job we were there, the buy-bust.
So police cars started to move in”). It was at this moment that Officer Smith
approached Appellant’s vehicle, displayed his police badge, and informed
Appellant that he was a police officer. Id. at 27, 33. After Officer Smith
informed Appellant a second time that he was a police officer, Appellant
reversed his vehicle out of his parking space at a high rate of speed and
attempted to exit the parking lot of the apartment complex. Id. at 33-34.
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Officer Smith subsequently testified that before he approached
Appellant, he first walked to Sergeant O’Neill’s vehicle and, upon speaking to
Sergeant O’Neill, learned that the suspect in the unrelated undercover drug
operation was in custody. Id. at 38, 57-58. Officer Smith then approached
Appellant’s vehicle, at which time there were no police vehicles in the
immediate vicinity of Appellant’s vehicle. Id. at 36. Although the suspect in
the unrelated undercover drug operation was already in custody, Officer Smith
stated the police vehicles did not enter the parking lot of the apartment
complex until Appellant reversed his vehicle out of his parking space at a high
rate of speed. Id. at 37, 57, 59.
Finally, Officer Smith testified that after the police vehicles entered the
parking lot as part of the unrelated undercover drug operation, he talked with
Sergeant O’Neill, and then approached Appellant. Id. at 59. Officer Smith
stated Appellant remained in his vehicle and the vehicle remained in its
parking space while the unrelated undercover drug operation unfolded. Id.
Sergeant O’Neill testified that he observed Appellant’s interaction with
the female driver from a parking lot located across the street from the
apartment complex, where he was stationed as part of the unrelated
undercover drug operation. Id. at 73, 79. At the time the female driver left
her parking space, Sergeant O’Neill said the officers got the go-signal that the
unrelated undercover drug operation was unfolding and the officers were to
move into position. Id. at 79. It was at this moment that the marked and
unmarked police vehicles began to enter the apartment complex parking lot.
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Id. The officers operating the police vehicles activated the vehicles’ lights and
sirens upon entering the parking lot. Id. at 39. Sergeant O’Neill, believing
Appellant just committed a felony, entered the parking lot with his police
vehicle lights activated with the intention of stopping Appellant’s movement.
Before Sergeant O’Neill was able to reach Appellant, however, he observed
Officer Smith approach Appellant. Id. at 80. At no point did Sergeant O’Neill
state that he spoke with Officer Smith in the apartment complex parking lot
prior to Officer Smith’s approach toward Appellant. Id. at 65-97.
Officer Smith’s recollection of the events was not entirely consistent as
to precisely when the police vehicles, with their lights and sirens activated,
entered the parking lot. See N.T., 9/12/19, at 26 (stating the police vehicles
responded to the unrelated undercover drug operation at the same time the
female driver exited her parking space); see also id. at 36-38 (stating Officer
Smith talked with Sergeant O’Neill before approaching Appellant and before
any police cars were in the vicinity of Appellant’s vehicle); id. at 59 (stating
the police vehicles entered the parking lot and Officer Smith spoke with
Sergeant O’Neill before approaching Appellant). Sergeant O’Neill, however,
testified in support of Officer Smith’s recollection that the police officers, in
marked and unmarked police vehicles, entered the apartment complex
parking lot in response to the go-signal for the unrelated undercover drug
operation at the moment when the female driver exited her parking space and
before Officer Smith approached Appellant’s vehicle. Id. at 79-80. The lights
and sirens of the marked and unmarked police vehicles were activated as the
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police vehicles entered the apartment complex parking lot. Specifically,
Sergeant O’Neill observed Appellant reverse his vehicle from the parking space
as Sergeant O’Neill entered the parking lot with his vehicle lights and siren
activated. Id.
In viewing the totality of the circumstances surrounding the incident, a
reasonable person, innocent of any crime, would not believe that he or she
was free to leave. The initial encounter between Officer Smith and Appellant
commenced when Officer Smith approached Appellant, displayed his police
badge, and twice identified himself as a police officer. Almost simultaneously,
police vehicles, with lights and sirens activated, entered the apartment
complex parking lot in which Appellant and his vehicle were located. See
Commonwealth v. Baldwin, 147 A.3d 1200, 1204 (Pa. Super. 2016)
(stating that an investigative detention exists when there has been a show of
physical force or a show of police authority), citing Commonwealth v. Lewis,
636 A.2d 619 (Pa. 1994). The arrival of the police vehicles, albeit connected
to an unrelated undercover drug operation unfolding in the same parking lot
as Appellant’s alleged drug transaction, conveyed to Appellant that he was not
at liberty to ignore Officer Smith and go about his business at the time Officer
Smith approached Appellant’s vehicle, displayed a police badge, and identified
himself as a police officer. See Commonwealth v. Livingstone,
174 A.3d
609, 621 (Pa. 2017) (stating, “we simply cannot pretend that a reasonable
person, innocent of any crime, would not interpret the activation of emergency
lights on a police vehicle as a signal that he or she is not free to leave”). While
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we acknowledge (as the suppression court observed) that our prior cases held
that the display of a police badge and an announcement by an individual that
he is a police officer, standing alone, do not amount to more than a mere
encounter, see Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa. Super.
2000) (holding that the displaying of a police badge and asking a defendant if
he or she would speak to the police officer is a mere encounter), appeal
denied,
775 A.2d 801 (Pa. 2001), we nevertheless conclude that Officer
Smith’s initial encounter with Appellant, as viewed by a reasonable person and
based upon the totality of the circumstances, including the simultaneous
arrival of multiple police vehicles with lights and sirens activated, was
transformed from a mere encounter into an investigative detention, for which
reasonable suspicion was required. See Beasley,
761 A.2d at 625 (stating,
the display of a police badge coupled with a command issued under the color
of official police authority causes the mere encounter with the police officer to
escalate to an investigatory detention). The suppression court erred as a
matter of law, therefore, in concluding that the initial encounter was nothing
more than a mere encounter.
Having discerned, as a matter of law, that the initial encounter between
Officer Smith and Appellant amounted to an investigative detention, we now
examine whether the record demonstrates that Officer Smith had reasonable
suspicion that Appellant was involved in criminal activity prior to the initial
encounter. To reiterate, “[t]o maintain constitutional validity, an investigative
detention must be supported by a reasonable and articulable suspicion that
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the person seized is engaged in criminal activity and may continue only so
long as is necessary to confirm or dispel such suspicion.” Hicks, 208 A.3d at
927, citing, Commonwealth v. Strickler,
757 A.2d 884, 889 (Pa. 2000).
Whether reasonable suspicion exists sufficient to support an investigative
detention is evaluated under the totality of the circumstances. Hicks,
208
A.3d at 927. “When evaluating whether reasonable suspicion existed in a
particular case, this Court must ‘view the circumstances through the eyes of
a trained officer, not an ordinary citizen.’” Commonwealth v. Milburn,
191
A.3d 891, 898 (Pa. Super. 2018), citing Commonwealth v. Riley,
715 A.2d
1131, 1135 (Pa. Super. 1998). “Although the police officer's own
observations, knowledge and experience thus weigh heavily in determining
whether reasonable suspicion existed, our courts remain mindful that the
officer's judgment is necessarily colored by his or her primary involvement in
the often competitive enterprise of ferreting out crime.” Beasley,
761 A.2d
at 626 (citation and original brackets omitted). “[T]he test we apply remains
an objective one and will not be satisfied by an officer's hunch or
unparticularized suspicion.”
Id. (citation omitted). “Accordingly, an [police]
officer's belief that criminal activity is afoot, albeit plausible under the
circumstances, must be linked with his [or her] observation of suspicious or
irregular behavior of the particular [suspect] before he [or she] may conduct
the stop.”
Id. (citation omitted).
Here, Officer Smith observed Appellant enter the apartment complex
parking lot and park his vehicle away from the entrance of the building even
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though parking spaces closer to the entrance were available. N.T., 9/12/19,
at 25, 27-28. A short time later, Appellant moved his vehicle to a parking
space located straight ahead of his current packing space. Id. at 26, 29.
Appellant remained in his vehicle the entire time. Id. at 26. A second vehicle,
driven by an unidentified female, subsequently parked adjacent to the
passenger side of Appellant’s vehicle. Id. at 26. 29. With Appellant’s vehicle’s
passenger window down, Officer Smith observed Appellant toss a “knotted
clear bag out of his passenger car window into this other car that was parked
next to him[.]” Id. at 26, 30. Immediately thereafter, Officer Smith observed
the female driver of the second vehicle throw a “wadded up ball of cash”
through the passenger window of Appellant’s vehicle. Id. at 26, 30. The
vehicle driven by the female then exited the parking lot with the entire
interaction between the two parties taking between fifteen and twenty
seconds. Id. at 26.
Officer Smith, based upon his observations, training, knowledge, and
experience in relation to drug transactions and investigation, believed he
witnessed an illegal drug transaction. Id. at 33. Officer Smith thereafter
approached Appellant’s vehicle, displayed his police badge to Appellant, and
identified himself as a police officer at the same time police cars were entering
the parking lot with lights and sirens activated. Id. at 33. After Officer Smith
identified himself as a police officer a second time, Appellant reversed his
vehicle out of the parking space at a high rate of speed in an attempt to exit
the parking lot. Id. at 33-34.
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In viewing the totality of the circumstances involving Appellant’s
interaction with the female driver through the eyes of Officer Smith, we are
persuaded that Officer Smith articulated specific observations that showed
Appellant’s involvement in criminal activity prior to Officer Smith’s initial
encounter with Appellant. Specifically, Officer Smith observed the exchange
of suspected drugs and money in a practice common to other drug
transactions he previously observed. The alleged drug transaction occurred
in a high drug trafficking area, took only a short amount of time, occurred in
a portion of the parking lot away from the building entrance, and involved two
individuals who did not communicate to each other. Finally, the transaction
involved two individuals whose automobile registration profiles fit parameters
of previously known drug dealers and buyers. Therefore, Officer Smith,
having reasonable suspicion that criminal activity was afoot prior to the initial
encounter, lawfully engaged Appellant in an investigative detention.
Consequently, Appellant’s issue is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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