Com. v. Maxon

798 A.2d 761

COMMONWEALTH of Pennsylvania, Appellee v. Albert D. MAXON, Appellant.

Superior Court of Pennsylvania.

Argued March 20, 2002.

Filed May 7, 2002.

Joseph P. Burt, Public Defender, Erie, for appellant.

Kathleen A. Scibetta, Asst. Dist. Atty., Erie, for Com., appellee.

Before: JOHNSON, BENDER, and MONTEMURO¹, JJ.

JOHNSON, J.

¶ 1 Albert D. Maxon appeals from the judgment of sentence entered following his conviction of Possession of a Controlled Substance, Possession of a Controlled Substance with Intent to Deliver, Possession of Drug Paraphernalia, Aggravated Assault, and Resisting Arrest. See 35 P.S. §§ 780-113(a)(16), (30), (32); 18 Pa.C.S. §§ 2702(a)(3); 5104 (respectively). Maxon contends the trial court erred in failing to suppress drug evidence recovered during a search of his person and a subsequent search of his home. Maxon also claims that the evidence was insufficient to support his conviction for resisting arrest. After study, we conclude that the trial court did err in not suppressing illegally obtained evidence and as a result, there was insufficient evidence to support Maxon's conviction for resisting arrest. Accordingly, we reverse the judgment of sentence and remand for proceedings consistent with this Opinion.

¶ 2 On February 11, 2000, Detectives Michael Nolan and Matt Fischer, of the City of Erie Police Department, conducted surveillance of Maxon's home based on information that Maxon was engaged in the drug trade. The record also reflects that an additional officer (known only as Sergeant Kress) provided back-up for the detectives in their surveillance. At approximately 2:00 p.m., Maxon pulled up in front of his home with an unidentified man in the passenger seat. Maxon entered the house and returned to the car several minutes later carrying a baggie in his hand. The detectives followed Maxon to his next destination whereupon he got out of the car, walked around the corner and out of the detectives' sight. Several minutes elapsed before Maxon returned to his vehicle and left. Still conducting surveillance, the detectives followed Maxon for ten minutes before he stopped again. The detectives again observed Maxon walk into a third house.

¶ 3 When Maxon emerged from the house, he went to and began speaking with his passenger, who had remained seated throughout the detectives' surveillance. Both Detectives Nolan and Fischer approached Maxon and walked with him to the back of his car while Sergeant Kress spoke with Maxon's passenger. Both detectives were in plain clothes but had their badges prominently displayed. Detective Nolan then informed Maxon that he had information that Maxon was selling drugs and asked if he had any on him. Maxon denied the charge and consented to a search. Detective Nolan grabbed Maxon's overcoat and felt what he believed to be a bag of cocaine. He stated his suspicion to Maxon. As Detective Nolan attempted to reach into Maxon's pocket, Maxon protested by attempting to push Detective Nolan's hand away. Detective Nolan refused to release Maxon, clutching the liner of Maxon's coat. A struggle ensued wherein Detective Fischer joined in an attempt to subdue Maxon. As the three men were rolling on the ground, Maxon managed to bite both men. Finally, Detective Nolan threatened to poke out Maxon's eye if he did not relent. Maxon then submitted. Detective Nolan then retrieved from Maxon a baggie of cocaine.

¶ 4 Leaving Maxon in police custody at the police station, the detectives proceeded directly to Maxon's home. When they arrived, Maria Vera, Maxon's girlfriend, answered the door. The detectives explained the circumstances of Maxon's arrest and asked if they could search the apartment for drug evidence. Vera, then 17 years old, gave her consent. A search of the apartment revealed more drugs, drug paraphernalia and $9,270 in cash.

¶ 5 Prior to trial, Maxon filed an omnibus motion seeking to suppress drug evidence secured from his person and home. The parties agreed to submit Officer Nolan's testimony, given during Maxon's preliminary hearing, for the trial court's review in determining the suppression issue. The court eventually denied Maxon's request and the case proceeded to a bench trial. The court found Maxon guilty of all the charges and sentenced him to an aggregate of seven to sixteen years' incarceration and $30,500 in fines. Maxon then filed this appeal.

¶ 6 Maxon presents the following questions for this Court's disposition:

1. Was the search of Mr. Maxon's person violative of his rights, state and Federal, to be free from unreasonable searched [sic] and seizures because it followed a police intervention equivalent to an arrest, the limited consent was timely terminated, and subsequent police action was not based on an exception to the requirement that a search be based on a warrant issued by a neutral magistrate after a determination that probable cause has been demonstrated?

2. Was the search of Mr. Maxon's home violative of his rights, state and Federal, to be free from unreasonable searches and seizures because it followed no valid consent and was not based on an exception to the requirement that a search be based on a warrant issued by a neutral magistrate after a determination that probable cause has been demonstrated?

3. Was the court's verdict as to resisting arrest not supported by sufficient evidence?

Brief for Appellant at 4.

¶ 7 When reviewing the suppression court's denial of a motion to suppress, we must first ascertain whether the record supports the suppression court's factual findings. See Commonwealth v. Dangle, 700 A.2d 538, 539 (Pa.Super.1997). When reviewing rulings of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. See Commonwealth v. Lynch, 773 A.2d 1240, 1243 (Pa.Super.2001). We are bound by the suppression court's findings if they are supported by the record, and may only reverse the suppression court if the legal conclusions drawn from the findings are in error. See Commonwealth v. Perry, 710 A.2d 1183, 1184 (Pa.Super.1998).

¶ 8 In support of his first question, Maxon contends that his encounter with the detectives amounted to a formal arrest and not a mere encounter. Brief for Appellant at 18. Maxon argues that as such, the detectives were required to demonstrate by articulable facts that he was engaged in criminal activity justifying detention. Brief for Appellant at 22. The Commonwealth argues that because the detectives "had no intent to arrest nor any intent to restrain [Maxon] if he chose to ignore the police and attempt to leave," Maxon was subject to a non-custodial encounter. Brief for Appellee at 2.

¶ 9 The Pennsylvania Supreme Court has been vigilant in the protection of the right to privacy guaranteed by Article I, Section 8 of our state Constitution. It bears repeating that Court's admonition:

The seriousness of criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional right of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.

Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372, 376 (2000). To secure the right of citizens to be free from such intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive. See Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.Super.2000). Our Supreme Court has defined three forms of police-citizen interaction: a mere encounter, an investigative detention, and a custodial detention. See Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 340 (1998). A mere encounter between police and a citizen need not be supported by any level of suspicion, and carries no official compulsion on the part of the citizen to stop or to respond. See Beasley, 761 A.2d at 624. No constitutional provision prohibits police officers from approaching citizens in public to make inquiries of them. If, however, the police action becomes too intrusive, a mere encounter may be regarded as an investigatory detention or seizure. See id. To determine whether a mere encounter rises to the level of an investigatory detention, we must discern whether, as a matter of law, police have conducted a seizure of the person involved. See Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1119 (1998).

¶ 10 To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. Stated differently, we ask whether a reasonable person, innocent of any crime, would have thought he was being restrained if he had been in the defendant's shoes. See Beasley, 761 A.2d at 625.

¶ 11 In applying this test, it is necessary to examine the nature of the encounter. Circumstances to consider include, but are not limited to, the following: the number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer's demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. See Beasley, 761 A.2d at 624.

¶ 12 Here, the trial court made several factual findings all of which are supported by the record. Accordingly, we are bound by those facts as we determine whether the court erred as a matter of law. See Perry, 710 A.2d at 1184. We shall rely on the following findings for the remainder of our analysis:

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6. Nolan testified that he was conducting surveillance...