Commonwealth v. Smith

172 A.3d 26

COMMONWEALTH of Pennsylvania, Appellee

v.Donald Lester SMITH, Appellant

No. 776 MDA 2016

Superior Court of Pennsylvania.

Submitted May 15, 2017

Filed October 10, 2017

Joshua M. Bower, Public Defender, Williamsport, for appellant.

Eric R. Linhardt, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

OPINION BY MOULTON, J.:

Donald Lester Smith appeals from the April 25, 2016 judgment of sentence entered in the Lycoming County Court of Common Pleas following his bench trial convictions for two counts of possession of a controlled substance, two counts of possession with intent to deliver a controlled substance, possession of drug paraphernalia, criminal conspiracy, and criminal use of a communications facility.¹ We affirm.

The trial court set forth the following factual history:

On June 10, 2015, [Trooper William Holmes, a 24–year veteran of the Pennsylvania State Police ("PSP") with extensive training and experience in narcotics,] ... was in the area of the Kmart Plaza [in Loyalsock Township, Lycoming County] assisting the [PSP] Narcotics Unit in gathering information with respect to alleged control substance trafficking on Tinsman Avenue. He was in a "covert surveillance post."

[Trooper Holmes] took numerous photos of an individual on Tinsman Avenue allegedly engaged in drug trafficking. He also observed the same individual allegedly involved in illegal drug transactions in the Kmart parking lot as well as another area in Loyalsock Township.

...

On June 16, 2016, [PSP] Trooper [Tyson] Havens and Trooper Robert Williamson were on duty and patrolling in an unmarked vehicle in Loyalsock Township. They were assigned to a[n] "aggressive patrol" traveling throughout specific areas of Loyalsock Township and Williamsport where "a lot of drug activity was being reported by civilians."

Approximately a week earlier, Trooper Havens was speaking with Trooper William Holmes regarding drug activity in Loyalsock Township in the area of the Kmart Plaza. Trooper Holmes provided Trooper Havens with at least one surveillance photo of a black male between 20 and 30 years old, who weighed approximately 220 pounds, had tattoos on his left arm and was wearing bright red shoes. Trooper Holmes related to Trooper Havens that he observed the black male conduct what appeared to be at least five different drug transactions with unknown individuals in cars in the area. Trooper Holmes asked for Trooper Havens' assistance in identifying the black male.

At approximately 10:00 a.m. on June 16, 2015, while Troopers Havens and Williamson were stationary [sic] near the area of the Best Western Hotel in Loyalsock Township across the street from the Kmart Plaza, they observed a passenger in a vehicle that passed in front of them. Both Trooper Williamson and Trooper Havens concluded that the passenger "looked a lot like the guy in the surveillance photo" provided by Trooper Holmes. This particular area was known as a "narcotics area." In fact, the troopers were stationed in close proximity to the area where Trooper Holmes previously took the picture of the suspect.

Trooper Havens and Trooper Williamson followed the vehicle around the hotel. The vehicle parked and the [T]roopers parked beside the vehicle. The passenger exited the vehicle. Trooper Havens immediately recognized the individual as the same individual in the surveillance photo "right down to the bright red shoes." In fact, Trooper Holmes had nicknamed the unknown black male as "Dorothy" because of the shiny red shoes. Trooper Havens concluded as well that the suspect might have been wearing the same shorts as were depicted in the surveillance photo.

The suspect exited the vehicle and quickly started walking away toward a breezeway. Trooper Havens exited his vehicle and called out for the suspect to stop. The [suspect] looked back, saw Trooper Havens who was in uniform, made eye contact with Trooper Havens[,] and walked away even faster. It was clear to Trooper Havens that the suspect wanted to get away. For a short period of time, perhaps a few seconds, Trooper Havens lost sight of the suspect in the breezeway area.

As a result, Trooper Havens jogged after the suspect, observed him at the end of the breezeway and called for him to stop a second time. The suspect continued walking away at a fast pace. Trooper Havens jogged faster and caught up with the suspect. Trooper Havens grabbed the suspect's arm. Immediately, the suspect tensed. Trooper Havens, based on his personal experience in the field for over two decades concluded that "a fight was coming." For "officer safety," Trooper Havens placed the suspect in handcuffs. The suspect was wearing a t-shirt and shorts. Trooper Havens was not concerned with [Smith] having any weapons; he just did not want to get in a fight and be "rolling around on the floor." Trooper Havens advised [Smith] that he was not under arrest, just being detained.

The suspect was escorted/walked back to the PSP vehicle. The walk back was approximately 30 to 40 feet. The suspect was identified as [Smith]. In approximately a minute after first being handcuffed, Trooper Havens released [Smith] from handcuffs. In a ruse, Trooper Havens falsely informed [Smith] that the PSP were dispatched to the hotel for a report of two black males breaking into a hotel room. [Smith] advised Trooper Havens that he was staying at a hotel room, in fact Room 123, but he had not broken into any rooms.

The [T]roopers were contemporaneously advised via dispatch that the driver of the vehicle ... was wanted out of Philadelphia. [The driver] was taken into custody. While [the driver] was being handcuffed, Trooper Havens asked [Smith] if he had any weapons on him. [Smith] advised no, but indicated that he had "a little personal use heroin in his pocket."

[Smith] directed Trooper Havens to his front right cargo shorts pocket where Trooper Havens discovered 22 bags of suspected heroin in bundled amounts. Trooper Havens also discovered in [Smith]'s left front pants pocket a cigar wrapper with four bags of suspected heroin. As well, Trooper Havens located on [Smith] $536.00 and two cellular phones.

Trial Ct. Op., 12/11/15, at 2–6. Based on the evidence and statements obtained from Smith, the troopers secured a search warrant for Smith's hotel room and recovered an additional 136 bags of heroin, $300 in cash, digital scales, and a quantity of marijuana. N.T., 12/7/15, at 23.

On August 25, 2015, Smith filed a motion to suppress physical evidence and statements, alleging that Trooper Havens stopped him without the requisite reasonable suspicion. After a hearing on December 7, 2015, the trial court denied Smith's motion on December 11, 2015. On April 25, 2016, following a non-jury trial, the trial court found Smith guilty of the aforementioned offenses and sentenced him to an aggregate term of 4 to 10 years' incarceration. On May 12, 2016, Smith timely filed a notice of appeal.

Smith raises three issues on appeal:

I. Did the lower court err when it denied [Smith]'s motion to suppress the evidence when an officer violated ... Smith's right against unreasonable search and seizure under both Article I, Section 8 of the Pennsylvania Constitution and 4th Amendment of the United States Constitution when he chased down and handcuffed Mr. Smith without the requisite reasonable suspicion or probable cause?

II. Did the lower court err when it denied [Smith]'s motion to suppress [Smith]'s statements made after he was subjected to an unlawful detention?

III. Did the lower court err when it denied [Smith]'s motion to suppress the evidence obtained via a search warrant, since without the illegally obtained controlled substance and statements from ... Smith, the search warrant for the hotel room lacked probable cause and was unconstitutionally defective?

Smith's Br. at 12 (trial court answers omitted). In reviewing the denial of a suppression motion, we must determine

whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before 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 suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010) (internal quotations and citations omitted).

First, Smith argues that the trial court should have suppressed the physical evidence recovered and the statements he made to Trooper Havens because Trooper Havens seized Smith without reasonable suspicion. According to Smith, he was "illegally arrested" when Trooper Havens caught him, which required Trooper Havens to possess reasonable suspicion. Smith asserts that Trooper Havens lacked reasonable suspicion because Trooper Havens only saw Smith "riding in the passenger [seat] of a gray vehicle" and did not observe Smith engage in hand-to-hand drug sales or observe any contraband or controlled substances prior to the seizure. Smith's Br. at 19–20. Smith contends that Trooper Havens only knew that Smith "may have been the same individual wearing red shoes as photographed by ... [T]rooper [Holmes]" and that the allegations of narcotics activity five days earlier "were insufficient to support a reasonable suspicion that [Smith] was currently involved in narcotic transactions on that...