Commonwealth v. Brame

239 A.3d 1119

COMMONWEALTH of Pennsylvania

v.Chester M. BRAME, Appellant

No. 599 EDA 2020

Superior Court of Pennsylvania.

Submitted August 24, 2020

Filed September 15, 2020

Guy R. Sciolla, II, Philadelphia, for appellant.

Gerald A. Stein, Philadelphia, for appellant.

Kevin R. Steele, District Attorney, Norristown, for Commonwealth, appellee.

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.^*

OPINION BY OLSON, J.:

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 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. 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].

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 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, Appell

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