Commonwealth v. Milburn

191 A.3d 891

COMMONWEALTH of Pennsylvania

v.Niyazz MILBURN, Appellant

No. 3031 EDA 2016

Superior Court of Pennsylvania.

Submitted December 18, 2017

Filed June 22, 2018

Melissa D. Thomas, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

OPINION BY DUBOW, J.:

Appellant, Niyazz Milburn, appeals from the Judgment of Sentence of 7½ to 20 years' incarceration following his jury conviction of Robbery, Firearms Not to be Carried Without a License, Carrying a Firearm in Public in Philadelphia, and Possession of an Instrument of Crime ("PIC").¹ Appellant challenges the denial of his Motion to Suppress Identification and Physical Evidence. After careful review, we affirm.

BACKGROUND

The relevant facts, as gleaned from the certified record, are as follows. On May 4, 2015 at 11:50 PM, Appellant robbed Joseph Spearman ("Spearman") at gunpoint on North Broad Street in Philadelphia, stealing Spearman's iPhone 6 and backpack containing clothing and medication. This incident occurred under a streetlight approximately five feet away from Spearman, and, thus, Spearman was able to view Appellant's face and his gun clearly. After the robbery, Appellant instructed Spearman to walk away, which he did, turning once to see Appellant with another man, later identified as Ronald Lyles. Spearman "was fairly sure"² Appellant and Lyles left the scene in a vehicle.

Spearman immediately called 9–1–1, giving the dispatcher a description of the assailant as African American, with a muscular build, medium complexion, and facial hair, and noted that he was wearing black jeans or sweat pants and a gray hoodie sweatshirt. When Philadelphia Police Officers Michael James and Edward Taylor responded to the 9–1–1 call, Spearman explained to Officer James that he had just been robbed by two black males, one of whom had a gun, and that Appellant had taken his iPhone 6, and his backpack, which contained Spearman's work uniform, other clothing, headphones, and medication.

Officers James and Taylor commenced surveying the neighborhood accompanied by Spearman in the police car. Utilizing the "Find My iPhone" application ("App") on Officer James's personal iPhone, Officer James and Spearman attempted to locate Spearman's iPhone.³ However, the App was not able to locate the phone at that time. After coming upon a male on a bicycle who was wearing black jeans similar to the assailant's, the officers stopped the bicyclist, but Spearman indicated that the man was not the person who robbed him. The officers ceased questioning the bicyclist and continued patrolling.

Officer James again attempted to locate Spearman's iPhone 6 using his own phone's "Find My iPhone" App. This time Officer James received a notification from the App indicating that Spearman's phone was in the area of 5^th Street and Erie Avenue in Philadelphia. After relaying the information over the police radio, Officer James proceeded to 5^th Street and Erie Avenue. Located at that intersection is a Sunoco gas station and an A–Plus Mini Market. Upon arrival about 30 seconds after receiving the App notification, the officers saw a van driving northbound through the gas station parking lot. Police searched for, but did not see, any individuals on foot and did not see anyone inside the A–Plus Market other than the cashier.

As the van exited the lot, it turned onto Erie Avenue, nearly hitting a car traveling westbound. The police officers then followed the van as it proceeded westbound for approximately 100 feet before turning right onto the 3700 block of Randolph Street. As the van turned, it rode up on the curb and nearly hit a street sign. Suspecting that the driver was not paying attention to the road or was "nervous,"⁴ Officer James then activated the police car's lights and sirens to pull the vehicle over. The van travelled another 20 to 30 feet before stopping. Only about one minute had elapsed between the time Officer James received the iPhone app notification and when he stopped the van.

Officers James and Taylor parked their vehicle behind the van and approached with their guns drawn, while Spearman remained inside the police car. The van's mini-blinds were drawn on all of the windows, except the driver's side and passenger's side front windows. Officer James instructed the driver and the individual in the front passenger seat to place their hands on the steering wheel and dashboard. The driver complied, but the passenger, later identified as Appellant, did not. After Officer Taylor observed Appellant place a small semiautomatic handgun under his seat, he removed Appellant from the vehicle, retrieved the handgun, and placed Appellant in handcuffs. At this point, Appellant was the only person the officers had removed from the car. Inside the vehicle in plain view, Officer Taylor saw a backpack, medication, clothing, and three additional occupants. Back-up police officers then arrived on the scene.

As the officers walked Appellant toward the back of the van, Spearman began jumping in his seat in the police car, pointing at Appellant, and nodding his head to indicate that he recognized Appellant as the perpetrator. Officer James then spoke with Spearman who emphatically confirmed that Appellant was the assailant who had robbed him. Spearman also identified the backpack, medication, and clothing found in the van as his personal belongings.

Officer James recovered an iPhone 6 from Appellant's pocket, which Appellant stated he had just purchased from someone for $10. Spearman, however, identified the phone as belonging to him, and he successfully unlocked the phone with his passcode. Officer James observed a photo of Spearman on the phone's home screen. Officer James then placed Appellant in another police vehicle.

Officers James and Taylor continued to remove the three remaining occupants from the vehicle. Spearman positively identified Ronald Lyles, a back-seat passenger, as the second assailant.⁵ Spearman indicated that the other two occupants were not involved in the robbery. Spearman also indicated that an onlooker at the scene of the traffic stop was not involved in the crime.

Detectives later obtained a search warrant for the van. Upon executing the warrant, detectives found Spearman's work uniform and name tag.

The Commonwealth charged Appellant with the above crimes.⁶

SUPPRESSION HEARING

On February 21, 2016, Appellant filed an Omnibus Pretrial Motion seeking to suppress Spearman's identification of him as the perpetrator of the crime and physical evidence obtained by police. In support of his argument challenging Spearman's identification of him, Appellant argued that the identification procedures employed by police were "unduly suggestive and conducive to irreparably mistaken identification." Pretrial Motion, 2/11/26, at ¶ 4. With respect to his Motion to Suppress Physical Evidence, Appellant argued that the "arresting officer did not have probable cause" to stop and search him. Id. at ¶¶ 13–14.

On June 13, 2016, the suppression court held a hearing on Appellant's Motion. Officer James testifed that he has been a Philadelphia Police Officer for 10 years, assigned to patrol the 25^th District. N.T., 6/13/16, at 29.⁷ He stated that he initiated the instant traffic stop because, in his experience, the erratic driving, i.e. , nearly hitting a vehicle, driving up on a curb, and nearly hitting a street sign, indicate that the driver is, inter alia , "nervous." Id. at 58. Officer James testified that he and Officer Taylor drew their guns at the scene of the traffic stop based on experience in conducting automobile stops in that area and the information provided by Spearman. Id. at 39.

With respect to the iPhone app, Officer James explained that he is "very familiar" with the "Find My iPhone" app, that his knowledge comes from both his personal and professional experience, and that he has used it about 25 times before. Id. at 52. He further testified that he has not received any outside training or any specialized instruction in the use of the app. Id. at 54. Further, Officer James testified that the victim emphatically and without hesitation identified Appellant as the perpetrator of the robbery. Id. at 20.

On June 13, 2016, the suppression court denied Appellant's Motion to Suppress.⁸ Appellant proceeded to trial after which the jury convicted him of Robbery, Firearms Not to be Carried Without a License, Carrying a Firearm in Public in Philadelphia, and PIC.

On August 26, 2016, the court sentenced Appellant to an aggregate sentence of 7½ to 20 years' incarceration. Appellant did not file a Post–Sentence Motion. On September 23, 2016, he filed a direct appeal to this Court.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal, which we have reordered for ease of disposition:

1. Did the lower [c]ourt err in denying Appellant's [M]otion to [S]uppress the illegal stop and search of the vehicle [in which Appellant was traveling] when police did not have reasonable suspicion to stop the van?

2. Did the lower [c]ourt err in denying Appellant's [M]otion to [S]uppress the suggestive show-up identification of [Appellant]?

Appellant's Brief at 4.

Issue 1—Impermissible traffic stop

In his first issue, Appellant claims that the court should have granted his Motion to Suppress evidence and preclude evidence the Commonwealth obtained from the van because the "ping" from the iPhone App was "the only information suggesting the van's occupants were the perpetrators" of the robbery. Appellant's Brief at 15. Appellant argues that this "ping" "does not arise [sic ] to the requisite reasonable suspicion to stop and detain a suspect." Id. He bases this argument on the allegation, without any meaningful development, that the Find My iPhone app is "unsanctioned GPS technology" whose results are insufficient "to justify an investigatory stop of an individual." Id. at...