Commonwealth v. Sarr-Daffee

COMMONWEALTH OF PENNSYLVANIA Appellee v. ALHAJI BAKARIE SARR-DAFFEE Appellant

J-A14027-15

No. 1851 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 22, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence August 21, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0004420-2013

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.^*

MEMORANDUM BY JENKINS, J.:

Appellant Alhaji Bakarie Sarr-Daffee appeals from the judgment of sentence entered in the Berks County Court of Common Pleas following his jury trial convictions for robbery,¹ theft by unlawful taking or disposition,² receiving stolen property,³ resisting arrest or other law enforcement,⁴ and false identification to law enforcement authorities.⁵ We affirm.

The relevant facts and procedural history of this appeal are as follows. On August 21, 2013, at approximately 2:00 p.m., Appellant entered the Riverfront Federal Credit Union bank, located on South 4^th Street in Reading, Pennsylvania. N.T., 3/7/14, at 4-5. Appellant approached pregnant bank teller Samantha Dix and handed her a note that demanded she give him "all the money" because he had a gun. Id. at 5-6. Dix gave Appellant the contents of her register, later determined to be $2,200.00. Id. at 7, 21. Appellant asked Dix if that was all of the money, Dix told Appellant that it was, and Appellant left the bank. Id. at 7. Dix then pressed the panic button to alert police of the robbery. Id. at 8.

Officer Wilfredo Ramirez of the City of Reading Police Department responded to the radio call and arrived at the bank approximately one-to-two minutes after Dix pushed the panic button. N.T., 3/7/14, at 34-36. Dix provided the following description of Appellant: a dark-skinned black male with "craters on his face" wearing a dark sweater, polarized sunglasses, and a dark colored baseball hat with white lettering. Id. at 37-38, 59. On his way to the bank, Officer Ramirez had noticed a black male wearing a dark colored baseball hat with white lettering, about a block away from the bank. Id. at 38. He left the bank to search for Appellant and broadcasted over the police radio that he had seen a black male who fit Appellant's description walking north on Wood Street. Id. at 39.

Officer James Thomas reported to the area, having heard Officer Ramirez's broadcast and the description of Appellant as a "black male, darkskinned" with "craters on his face." Id. at 59. While he was driving to the area in his patrol car, Officer Thomas noticed a black male walking north on 5^th Street. Id. at 60. The male, later identified as Appellant, turned and looked at Officer Thomas about four or five times as the officer sat in his patrol car waiting for a stoplight to turn green. Id. Just as Officer Thomas was about to pass Appellant, Appellant turned abruptly and began to walk south on 5^th Street. Id. Officer Thomas turned his vehicle around and parked about 20 feet behind Appellant, who was still walking quickly. Id. at 61. Officer Thomas followed Appellant and said, "Excuse me, can I talk to you?" Id. When Appellant turned toward Officer Thomas to respond, Officer Thomas noticed bumps on Appellant's face and neck. Id. Appellant told Officer Thomas that he did not want to talk to him and proceeded to walk quickly away from him. Id.

Officer Thomas continued to follow Appellant and verbally attempted to get him to stop to talk with him regarding a bank robbery. Id. at 62. Appellant again stated that he did not want to speak with the officer and continued to walk away. Id. When Officer Thomas caught up to Appellant, Appellant started to run. Id. Officer Thomas then tried to grab Appellant's arm to stop him, but Appellant pushed the officer away and refused orders to stop and get on the ground. Id. at 64. Eventually, four or five officers managed to stop Appellant. Id.

Police detained Appellant until Dix arrived to identify him. N.T., 3/7/14, at 72, 90. Dix could not immediately identify Appellant, so thepolice moved him closer so that he was within a few feet from her. Id. at 90-91. Dix noted that Appellant was no longer wearing black clothing, a hat or sunglasses. Id. at 90. After she "had him put the sunglasses on,"⁶ Dix made a positive identification of Appellant, noting that he appeared to have the same acne as the person who robbed her. Id. at 11, 91. The identification took place approximately twenty minutes after the initial radio broadcast of Appellant's description.⁷ Id. at 72.

After Dix identified Appellant, Officer Ramirez searched Appellant for weapons and found $2,200.00 in his pocket. Id. at 44.

On February 7, 2014, Appellant filed an omnibus pretrial motion, which included a motion to suppress evidence and a motion to suppress out-of-court identification. On May 14, 2014, after a hearing on May 7, 2014, the court denied Appellant's motion. Additionally, on July 2, 2014, Appellantfiled a motion for release pursuant to Pa.R.Crim.P. 600, which the court denied on July 15, 2014.

On July 17, 2014, a jury convicted Appellant of the aforementioned charges. On August 29, 2014, the court sentenced him to 6-15 years' imprisonment for robbery and 1-2 years' imprisonment, consecutive, for resisting arrest or other law enforcement.⁸ On September 2, 2014, Appellant timely filed post-sentence motions, which the court denied on October 7, 2014, after conducting a hearing on October 3, 2014. On November 3, 2014, Appellant filed a notice of appeal. The same day, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on November 20, 2014.

Appellant raises the following issues for our review.

1. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AS: (A) THERE WAS AN INSUFFICIENT DESCRIPTION OF THE ASSAILANT TO SUPPORT REASONABLE SUSPICION/PROBABLE CAUSE JUSTIFYING AN INVESTIGATIVE DETENTION/ARREST OF ANY PERSON LET ALONE APPELLANT AND/OR (B) THE APPELLANT DID NOT SUFFICIENTLY MATCH THE DESCRIPTION OF THE ASSAILANT THAT WAS PROVIDED SO AS TO SUPPORT REASONABLE SUSPICION/PROBABLE CAUSE JUSTIFYING HIS INVESTIGATIVE DETENTION/ARREST?

2. DID THE TRIAL COURT ERR IN DENYING APPELLANT[']S MOTION TO SUPPRESS THE OUT OF COURT IDENTIFICATION OF THE APPELLANT MADE BY SAMANTHA DIX AS THE IDENTIFICATION WAS MADE BASED ON A PAIR OF SUNGLASSES THAT ACTUALLY BELONGED TO A POLICE OFFICER WHO PLACED THEM ON THE APPELLANT WHO WAS CLEARLY IN POLICE CUSTODY DURING A SHOW-UP AS WELL AS ANY IN COURT IDENTIFICATION AS SUCH WAS TAINTED BY THE SAID OVERLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION?

3. DID THE TRIAL COURT [ERR] IN DENYING APPELLANT'S RULE 600 FOR RELEASE ON NOMINAL BAIL AS 180 DAYS NOT ATTRIBUTABLE TO THE APPELLANT HAD ELAPSED SINCE THE FILING OF THE CRIMINAL COMPLAINT PRIOR TO TRIAL AND THIS ISSUE IS ONE CAPABLE OF REPETITION AND LIKELY TO EVADE REVIEW?

Appellant's Brief at 10-11.

In his first issue, Appellant challenges the court's denial of his motion to suppress evidence. Appellant argues the police did not have reasonable suspicion or probable cause to warrant an investigative detention of his person. He claims the description upon which the police acted was vague and generic, and that it did not fit Appellant's description when they apprehended him. Appellant concludes that the seizure of his person was unconstitutional, and that any evidence flowing from that seizure, including the cash seized from his person and the out-of-court identification must be suppressed. We disagree.

Our standard of review for a trial court's denial of a suppression motion is as follows:

In addressing a challenge to a trial court's denial of a suppression motion we are limited to determining whetherthe factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the Commonwealth prevailed in the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super.2010) (quoting Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa.2003)). "Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions." Commonwealth v. Guzman, 44 A.3d 688, 692 (Pa.Super.2012) (citation omitted).

Pennsylvania recognizes three types of interactions between police officers and citizens. Commonwealth v. Stevenson, 832 A.2d 1123, 1126-27, (Pa.Super.2003). "Interaction between citizens and police officers, under search and seizure law, is varied and requires different levels of justification depending upon the nature of the interaction and whether or not the citizen is detained." Id.

The first category, a mere encounter or request for information, does not need to be supported by any level of suspicion, and does not carry any official compulsion to stop or respond. The second category, an investigative detention, derives from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny: such a detention is lawful if supported by reasonable suspicion because, although it subjects a suspect to a stop and a period of detention, it does not involve such coerciveconditions as to constitute the functional equivalent of an arrest. The final category, the arrest or custodial detention, must be supported by probable cause.

Commonwealth v. Gonzalez, 979 A.2d 879, 884 (Pa.Super.2009) (quoting Commonwealth v. Moyer, 954 A.2d 659, 663 (Pa.Super.2008) (en banc) (quoting Commonwealth v. Smith, 836 A.2d 5, 10 (Pa.2003))).

A "mere encounter" can be any formal or

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