Commonwealth v. Anderson

276 A.3d 282

COMMONWEALTH of Pennsylvania, Appellant

v.Sylvester ANDERSON

No. 662 MDA 2020

Superior Court of Pennsylvania.

Argued November 30, 2021

Filed: May 25, 2022

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellant.

James J. Karl, Harrisburg, for appellee.

Spencer H. Bradley, Harrisburg, for appellee.

George H. Mantangos, Camp Hill, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.

OPINION BY McCAFFERY, J.:

The Commonwealth appeals from the April 21, 2020, order entered in the Court of Common Pleas of Dauphin County granting the motion to suppress filed by Sylvester Anderson (Appellee).¹ The Commonwealth contends the trial court erred in categorizing the police interaction with Appellee as an improper investigative detention rather than a mere encounter. Central to this appeal is the question of whether a reasonable person would feel free to leave or not engage with a police officer when, inter alia , this was a two-phase interaction, there were multiple armed and uniformed officers present, and one officer requested Appellee's identification while also questioning him about his parole status and whether he had anything on his person. The Commonwealth suggests yes. Moreover, the Commonwealth argues the trial court erred in finding that the officer's search of Appellee's person exceeded the scope of consent that he granted and therefore, the Commonwealth was unable to meet its burden of proving valid consent. Upon review, we affirm.

The trial court summarized the relevant facts of this case, which were taken from the January 2020 suppression hearing, as follows:

On May 29, 2019, Officer Chad McGowan (hereinafter "Officer McGowan") of the City of Harrisburg Police department was assigned to the Street Crimes Unit. He was accompanied by four (4) other law enforcement officers – Adult Probation Officer Chianos, Sheriff Deputy Long, Sheriff Deputy [Maurice] Edwards, and Corporal Teeter,^[2] all of whom were in an unmarked police car equipped with police lights as part of their patrol for the Street Crimes Unit. All were dressed in the Street Crimes Unit outfit – tactical attire, sewn-on badge in the front, police insignia on the front and back, and "Street Crimes Unit" on one sleeve, and either "Police" or "Sheriff" or "Probation" (depending on the officer's employment) on the other sleeve.

At approximately 9:30 P.M., Officer McGowan was driving an unmarked vehicle with four (4) other uniformed and armed law enforcement officers through the parking lot of Harrisburg Fried Chicken, located at 1314 Market Street. This parking lot is known to officers as a high crime, high drug area.

Officer McGowan observed an unknown male (later identified as [Appellee]) "on his hands and knees, looked to be crawling on the ground, next to a red Dodge pickup truck" for less than a minute. The vehicle was not running, Officer McGowan did not see anyone operating the truck and did not observe how the truck got into the parking lot. Further, there was no indication that [Appellee] was the operator of the truck except for [his] proximity to the truck. Officer McGowan pulled his vehicle, with a total of five (5) uniformed and armed law enforcement officers, beside [Appellee] and saw that he was "profusely sweating²," and asked if [Appellee] was okay. [Appellee] responded that he had just dropped something on the ground. Officer McGowan testified that he considered that to be the end of their initial contact.

² The unconverted testimony is that on May 29, 2019, the high temperature was 86 degrees with 67% humidity.

[Appellee] then entered Harrisburg Fried Chicken. After [he] went inside, Officer McGowan testified that he noticed the driver's side window of the truck was down, which he believed was uncommon for this area. In addition, the car was not parked within the lines of the parking space. Officer McGowan "became curious if the individual was possibly, you know, intoxicated or impaired on alcohol or a controlled substance." Despite these observations, Officer McGowan testified that he did not intend to find the driver of the vehicle or ask [Appellee] if he was the operator of the vehicle. Rather, he, along with four (4) other armed and uniformed law enforcement officers, waited in the vehicle which was parked in the drive-through. However, Deputy Sheriff Edwards testified that all five (5) armed and uniformed law enforcement officers exited the vehicle once [Appellee] went inside Harrisburg Fried Chicken. Deputy Sheriff Long walked over to the entrance and watched [Appellee] the entire time he was inside [the food establishment], and noted that [Appellee] did not order food [but did get a soda,] and was pacing inside.

Officer McGowan testified that when [Appellee] exited Harrisburg Fried Chicken, he looked left toward the officers, and then turned right and began walking in the opposite direction. Based on that behavior, Officer McGowan, along with Deputy Sheriff Edwards approached [Appellee] – dressed in their Street Crimes Unit outfit and armed.³ Officer McGowan asked to speak to [Appellee], which he obliged. Officer McGowan then asked [Appellee] for identification, which [Appellee] provided a valid identification.⁴ He then specifically asked [Appellee] if he was on parole and if there was anything illegal on his person. [Appellee] responded that he was on parole but did not have anything illegal on his person. Notably, Officer McGowan did not document that [Appellee] was "profusely sweating" nor exhibiting signs of being under the influence during this second encounter. Interestingly, Deputy Sheriff Edwards testified that he smelled an odor of alcohol and [Appellee]’s eyes were red and glassy.

³ Officer McGowan is 6'6? and 240 pounds, Deputy Sheriff Edwards is 5'9?, and [Appellee] is 5'6?.

⁴ Neither Officer McGowan nor Deputy Sheriff Edwards could recall whether a warrant check was conducted when [Appellee] provided his identification.

Apparently not satisfied with [Appellee]’s answers, Officer McGowan asked [Appellee] for permission to search his person. Officer McGowan testified that he did not believe [Appellee] was untruthful in his responses, [Appellee] was calm, and did not show any signs of intoxication (i.e. no odor of alcohol) – the "best glimpse" Officer McGowan had that something was "off" was the fact that [Appellee] was allegedly sweating profusely when he first stood up from being on the ground. Further, Deputy Sheriff Edwards stated that he believed at that point they had "some reasonable suspicion of something," but were still treating it as a mere encounter. Notably, Officer McGowan did not testify that he wanted to pat-down [Appellee] for officer safety. Rather, he specifically asked [Appellee] to search his person. According to the testimony, [Appellee] granted verbal consent and "held his hands up in the air as if allowing me [Officer McGowan] to conduct my search a little easier."

Officer McGowan first searched [Appellee]’s pockets and found nothing of significance. He then "swept over [Appellee]’s groin region" and "felt a hard and distinct bulge ... it was immediately apparent to me he had a substantial amount of crack cocaine down the front of his pants." Further, Officer McGowan testified that "[b]efore it was even recovered, I remember specifically saying to my partner, he has an ounce of crack down his pants. And sure enough, we removed 28.3 grams of crack cocaine." At that point, Officer McGowan decided to place [Appellee] under arrest.

[Appellee] attempted to flee but was tackled a few feet away and a struggle ensued. Officer McGowan stated that [Appellee] was resisting arrest until Deputy Sheriff Edwards "advised him that he was going to Taser him if he did not comply." After [Appellee] was handcuffed, Officer McGowan recovered the "large amount of crack cocaine." It was later determined that the substance recovered "was almost exactly an ounce of crack cocaine, just like [Officer McGowan] thought."

[Appellee] testified on his own behalf at the suppression hearing. His testimony was generally the same as that of Officer McGowan and Deputy Sheriff Edwards. However, [Appellee] testified that during the initial encounter, Officer McGowan exited his vehicle, asked him what he was doing, and asked for his identification. Additionally, [Appellee] stated that Officer McGowan patted him down before going into Harrisburg Fried Chicken. During the second encounter with [Appellee], Officer McGowan "went in my pockets, pulled the stuff out of my pockets, and then he patted me down, which he admitted. He didn't just swipe. And then he starts rubbing – grabbing my testicles and penis." [Appellee] stated that the search made him feel sexually violated. [Appellee] also disputes that he ran – "I didn't have a chance to run from him. I wouldn't have ran because they had a K-9 ... dog[ ] out there."⁵

⁵ Although Deputy Sheriff Long is a K-9 handler, according to Officer McGowan, he did not have his K-9 partner with him that night of the incident. However, Officer McGowan stated that Sergeant Meik, who is also a K-9 handler, arrived on scene toward the end of the interaction.

Trial Ct. Op., 6/30/20, at 1-5 (record citations and emphasis omitted). At the conclusion of the encounter, the police arrested and charged Appellee with numerous offenses.³

On August 1, 2019, a preliminary hearing was conducted, where Officer McGowan testified about the events that transpired on the evening of May 29th. The matter was then held over for court.

On November 12, 2019, Appellee filed a motion seeking suppression of all physical evidence and incriminating statements which he alleged were "unlawfully and unconstitutionally obtained from him under the state and federal constitutions." Defendant's Motion to Suppress Evidence, 11/12/19, at 23. Specifically, Appellee stated that his constitutional rights were violated because the...