Commonwealth v. Brockman

167 A.3d 29

COMMONWEALTH of Pennsylvania

v.Julius BROCKMAN, Appellant

No. 2435 EDA 2016.

Superior Court of Pennsylvania.

Submitted June 5, 2017

Filed July 5, 2017

David M. Simon, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, and Michael L. Erlich, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Julius Brockman appeals the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on June 13, 2016, at which time he was sentenced to an aggregate term of four (4) years to eight (8) years in prison following a stipulated bench trial. We affirm.

The trial court aptly set forth the relevant procedural history and facts herein as follows:

PROCEDURAL HISTORY

The Commonwealth charged Appellant with violating sections 6105, 6106, and 6108 of the Uniform Firearms Act ( 18 Pa. C.S.A. §§ 6105, 6106, and 6108 ), possessing with intent to deliver a controlled substance ( 35 P.S. § 780–113(a)(30) ), and knowingly or intentionally possessing a controlled substance ( 35 P.S. § 780–113(a)(16) ). On April 11, 2016, Appellant brought a pretrial motion to suppress physical evidence, which this [c]ourt denied. A bench trial followed and this [c]ourt found Appellant guilty of the above-referenced crimes.

On June 13, 2016, this [c]ourt sentenced Appellant to three (3) to six (6) years' incarceration for violating section 6106 of the Uniform Firearms Act, one (1) to two (2) years' consecutive incarceration for violating section 6105 of the Uniform Firearms Act, and three (3) years' probation for violating section 6108 of the Uniform Firearms Act. This [c]ourt imposed no further sentence for Appellant's remaining convictions and his aggregate sentence therefore is four (4) to eight (8) years' incarceration followed by three (3) years' probation.

On June 22, 2016, Appellant filed a post-sentence motion for reconsideration of sentence, which this [c]ourt denied on June 30, 2016. On July 28, 2016, Appellant filed a Notice of Appeal to the Pennsylvania Superior Court, and on October 18, 2016, Appellant filed a Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. No. 1925(b).

MATERIAL FACTS

Appellant brought a motion to suppress a firearm and crack cocaine that he discarded onto a public street in Philadelphia, Pennsylvania. At the suppression hearing, the Commonwealth presented the testimony of Philadelphia Police Detective Michael Rocks (Detective Rocks), and Philadelphia Police Officer Alexander McChord (Officer McChord).

Detective Rocks testified that he was assigned to investigate a shooting that occurred on December 12, 2014, around the 2500 block of North 30th Street in the city and county of Philadelphia, Pennsylvania. Pursuant to his investigation, Detective Rocks received information from another police officer, Officer Calabrese, who spoke to the shooting victim at the hospital. Officer Calabrese advised Detective Rocks that the victim stated "he couldn't believe Ju Ju shot Him." The victim also provided Officer Calabrese a physical description of "Ju Ju" (e.g., height and weight), which Officer Calabrese relayed to Detective Rocks. Thereafter, Detective Rocks "reviewed numerous photographs" from files relating to previous pedestrian stops in the shooting area. Based on the suspect's nickname, physical description, and the neighborhood of the shooting, Detective Rocks ultimately developed Appellant as the suspected shooter. ¹(Id. at pgs. 5–10, 16–18).²

On December 23, 2014, after already developing Appellant as a suspect, Detective Rocks received a phone call at Central Detectives from a female identifying herself as the victim's girlfriend. The girlfriend advised that "the male that shot her boyfriend was standing on the 2600 block of North 30th Street ... wearing a grey jacket and jeans." ³ The girlfriend did not identify the alleged shooter by name but provided Detective Rocks a "clothing description." Detective Rocks subsequently called Officer McChord and his partner (Officer D'Amico), who were uniformed patrol officers in the area, and "asked them to go to that location to see if they observed the male who matched that description[.]" In addition to relaying the girlfriend's "clothing description" of the person she identified as the shooter, Detective Rocks informed Officer McChord that his suspect's name in the shooting was Julius Brockman (i.e ., Appellant). Although Appellant was still only a suspect and no arrest warrant had been issued for him, Detective Rocks requested that if the officers saw Appellant at the described location, "to stop him and bring him to Central Detectives for investigation." (Id. at pgs. 10–12).

Officer McChord already knew Appellant "from seeing him in the neighborhood" and because his partner "arrested him earlier that year." Upon arriving at the above-referenced location, Officer McChord, who was the front seat passenger in the patrol car, recognized Appellant walking down the block with another male. Officer D'Amico pulled the patrol car beside Appellant and Officer McChord then "opened up the door and told [Appellant] to stop." (Id. at pgs. 20–25).

Officer McChord testified that he "told [Appellant] to stop right there" in a "normal manner" —i.e. , Officer McChord neither yelled stop nor said it with a "soft voice." Moreover, Officer McChord kept his firearm holstered and no lights or sirens were activated on the patrol vehicle. Officer McChord testified that his "whole point" of stopping Appellant was not to arrest him but "for investigation purposes." (Id. at pgs. 23–24).

As soon as Officer McChord told Appellant to stop, Appellant "immediately reached for his front right side of his waistband holding on to something and then fled." Officer McChord believed Appellant was clutching a firearm in his waistband because he had seen individuals clutch firearms in such manner between fifteen (15) and twenty (20) occasions. In Officer McChord's experience, when someone keeps an unholstered firearm in his/her waistband, he/she must grasp the weapon while running or it will fall out of his/her waistband. (Id. at pgs. 24–29).

As Appellant fled the officers, Officer McChord observed him remove from his waistband a black handgun and a "clear bag," both of which Appellant dropped in front of a black SUV parked on the street. Although Officer McChord eventually lost sight of Appellant when the latter ran down a side street, his partner (Officer D'Amico) arrested Appellant the very next day pursuant to an arrest warrant. (Id. at pgs. 24–29).

Before trial, Appellant moved to suppress the firearm and "clear bag" that he discarded while fleeing from the officers. Appellant claimed Officer McChord had initially ordered him to stop without reasonable suspicion that Appellant was engaging in criminal activity at that time . Appellant therefore claimed that the discarded items were fruits of a "forced abandonment" precipitated by an unlawful seizure. (Id. at pgs. 32–35, 42–43).

This [c]ourt denied Appellant's motion and thereafter conducted a stipulated bench trial. Appellant stipulated that Officer McChord would testify at trial that he recovered the "clear bag" that Appellant discarded, and that the bag contained thirty-five (35) "clear plastic Ziploc packets" of crack cocaine. Officer McChord also would testify that the firearm Appellant had discarded was placed on a property receipt and was "test fired and ... found to be operable." Appellant further stipulated that the Commonwealth's expert, "Officer Keys," would testify that he "reviewed the file" and heard the testimony, and expertly opines that the crack cocaine Appellant discarded "was possessed with the intent to deliver." In addition to the stipulated testimony, the Commonwealth submitted a Certificate of Nonlicensure and a criminal "extract indicating [Appellant] is ineligible to possess a firearm in Pennsylvania." (Id. at pgs. 50–51).

Based on the above evidence, this [c]ourt found Appellant guilty of unlawfully possessing a firearm ( 18 Pa. C.S.A. § 6105 ), carrying a firearm without a license ( 18 Pa. C.S.A. § 6106 ), unlawfully carrying a firearm on the public streets of Philadelphia ( 18 Pa. C.S.A. § 6108 ), possessing with intent to deliver a controlled substance ( 35 P.S. § 780–113(a)(30) ), and knowingly or intentionally possessing a controlled substance ( 35 P.S. § 780–113(a)(16) ). (Id. at pg. 52). For Appellant's firearms convictions, this [c]ourt sentenced him to an aggregate term of four (4) to eight (8) years' incarceration, followed by three (3) years' probation. This [c]ourt imposed no sentence for Appellant's narcotics convictions. (N.T., 6/13/16, pgs. 19–20.)

¹ Detective Rocks testified that Appellant had a tattoo on his body that stated, "Ju Ju." However, the Commonwealth subsequently stipulated that if Appellant testified, he would exhibit to the [c]ourt that he had no tattoo bearing the name Ju Ju. (Id. at pgs. 18, 29).

² Detective Rocks testified that the victim was "uncooperative" in the investigation and refused to give a statement about the incident, notwithstanding the detective's several attempts to interview him. Because the victim refused to cooperate, Detective Rocks did not show him photographs of Appellant for purposes of identification. (Id. at pgs. 19–20).

³ Detective Rocks testified that he believes this female obtained his phone number from his work card that he left at the hospital with the victim. Although Detective Rocks never met this female in person or formally interviewed her at the police station, she had called him "several times" between the day of the shooting and December 23rd. (Id. at pgs. 13–14).

Trial Court Opinion, filed 12/13/16, at 1–5 (emphasis in original).

In his brief, Appellant presents the following Statement of the Questions Involved:

A. Did the lower court abuse its discretion when it denied Appellant's motion to suppress, where Appellant

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