Commonwealth v. Taylor

2011 PA Super 270

33 A.3d 1283

COMMONWEALTH of Pennsylvania

v.Donte TAYLOR, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 8, 2011.Filed Dec. 14, 2011.

Suzanne M. Swan, Chief Public Defender and John Ciroli, Jr., Public Defender, Pittsburgh, for appellant.

Margaret Ivory, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., PANELLA and PLATT,^* JJ.OPINION BY FORD ELLIOTT, P.J.E.:

Appellant, Donte Taylor, appeals from the judgment of sentence entered on May 19, 2010, following his conviction of two counts of possession of a controlled substance with intent to deliver, and two counts of possession of a controlled substance by a person not registered to do so.¹ We affirm.

Appellant was arrested and charged with two counts each of possession with intent to deliver a controlled substance and possession of a controlled substance. Appellant filed a suppression motion, and following a hearing on February 24, 2010, the motion was denied. A bench trial followed, and the notes of testimony from the suppression hearing were incorporated.

The facts of the case are as follows. On July 2, 2006, Detective Edward Fallert, Detective Mark Goob, and Sergeant Jason Snyder of the Pittsburgh Police were patrolling Creswell Street, in Pittsburgh, in an unmarked car and in an undercover capacity. At approximately 12:27 a.m., they observed appellant and another man sitting alone on a wall; appellant was holding a potato chip bag. (Notes of testimony, 2/24–25/10 at 110.) As the officers approached, appellant crumpled the bag and put it down to his side. Appellant then tossed the bag onto the ground. ( Id. at 112.) At this point, the officers, having viewed what just transpired, got out of their vehicle and identified themselves as police officers.

Detective Fallert testified that based on his training and experience, he was aware that drug dealers sometimes conceal drugs in potato chip bags or iced tea cartons. ( Id. at 18.) They typically hide them at a nearby location and retrieve them when they need to make a sale. Detective Fallert picked up the potato chip bag and discovered that it contained 68 bags of crack cocaine and 55 bags of heroin. ( Id. at 21, 38.) The chip bag also contained a bag of rice which, Detective Fallert explained, is commonly used to absorb water to prevent heroin from getting wet. ( Id. at 22.) According to Detective Fallert, the packaging of the drugs was consistent with drugs that are packaged for sale. ( Id. at 42–43.) Thus, based on his training and experience, he believed the potato chip bag contained something illegal based on “[t]he way [appellant] acted with it.” ( Id. at 19.) At this point, appellant was placed under arrest. ( Id. at 23.) A search of appellant's person revealed $127 and a cell phone; no paraphernalia was recovered. ( Id. at 24.) The Commonwealth also presented the expert testimony of Detective Anthony Scarpine. Detective Scarpine testified that a hypothetical set of facts, identical to those recited above, led him to conclude that the drugs were packaged and possessed with intent to sell them. ( Id. at 150, 152–153, 159.)

Appellant testified at trial and stated that Ernest Turner handed him the potato chip bag as they were sitting on the wall. ( Id. at 165–166.) Appellant looked inside the bag and observed the drugs. ( Id. at 166.) Appellant explained that he did not want the bag and only held it for a few seconds before the police apprehended him. ( Id. at 166–168.) Appellant averred that he did not intend to take the drugs or to sell the drugs.

Thereafter, appellant was convicted of the aforementioned charges. On May 19, 2010, appellant was sentenced to a term of imprisonment of not less than three nor more than six years for the conviction of possession with intent to deliver heroin, and a consecutive sentence of five to ten years' imprisonment for the conviction of intent to deliver cocaine; the simple possession convictions merged for sentencing purposes. Post-sentence motions were filed on June 1, 2010 and denied by the trial court on July 8, 2010. This appeal followed, and the trial court issued on opinion on January 19, 2011.

The following issues are before us for review:

I. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT DENIED SUPPRESSION OF FORCIBLY ABANDONED PHYSICAL EVIDENCE AND STATEMENTS MADE TO POLICE DURING AN ILLEGAL DETENTION?

II. DID THE COMMONWEALTH FAIL TO MEET ITS BURDEN OF PROOF WHEN IT ADDED AN ELEMENT TO TWO OF THE CRIMES CHARGED IN APPELLANT'S CRIMINAL INFORMATION, AND THEN FAILED TO OFFER ANY EVIDENCE OF THAT ELEMENT AT TRIAL?

III. DID THE COMMONWEALTH FAIL TO PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT] POSSESSED NARCOTICS WITH THE INTENT TO DELIVER THEM?

Appellant's brief at 5.²

Appellant first argues that the trial court erred in denying his motion to suppress. We begin our analysis of the suppression issue with our standard of review:

[I]n addressing a challenge to a trial court's denial of a suppression motion [we are] limited to determining whether the 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, 573 Pa. 426, 445, 826 A.2d 831, 842 (2003).

Appellant's argument is premised on his belief that he was illegally detained, or “seized,” by the police within the meaning of the Fourth Amendment of the Federal Constitution, and then forced to abandon the potato chip bag. Appellant further argues that because of this forced abandonment, any evidence gathered as a result should have been suppressed.

We note at the outset that it is “axiomatic that a defendant has no standing to contest the search or seizure of items which he has voluntarily abandoned.” Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276, 278 (1992), quoting Commonwealth v. Windell, 365 Pa.Super. 392, 529 A.2d 1115, 1117 (1987). With that being said, our supreme court has instructed that:

initial illegality taints the seizure of the evidence ... [because] in such a situation it cannot be said that there was a voluntary abandonment or relinquishment of the evidence.... No improper or unlawful act can be committed by the officers prior to the evidence being abandoned.

Commonwealth v. Shoatz, 469 Pa. 545, 554, 366 A.2d 1216, 1220 (1976). Thus, in the instant case, the question becomes whether there was any illegality on the part of the police officers before appellant abandoned the potato chip bag.

In order for a suspect to be “seized” by the police within the meaning of the Fourth Amendment, given the circumstances, a reasonable person would have to believe that he was not free to leave. Commonwealth v. Matos, 543 Pa. 449, 451–452, 672 A.2d 769, 770–771 (1996). It is undisputed that when the police first approached appellant, they were in an unmarked car and undercover; but despite that, appellant was able to identify them as police officers. (Notes of testimony, 2/24–25/10 at 17, 83–84.) It is also undisputed that while the police officers were in their vehicle, they had no interaction whatsoever with appellant; they were merely observing him. ( Id. at 15, 83–84.) The Commonwealth's evidence shows that appellant then tossed the potato chip bag, at which point the officers exited their vehicle and approached appellant. ³ ( Id. at 20.) None of this police conduct rises to the level of illegality.

As this court has held, “[a] police cruiser passing through the neighborhood on routine patrol does not amount to police coercion compelling the abandonment of contraband.” Commonwealth v. Pizarro, 723 A.2d 675, 679–680 (Pa.Super.1998). While appellant may have felt uncomfortable being watched by three people in a car that he knew to be a police vehicle, we cannot find such amounted to police coercion or would cause a reasonable person to believe he was not free to leave. Appellant discarded the potato chip bag at his own volition. Therefore, the trial court properly denied appellant's motion to suppress.

In his second issue on appeal, appellant contends that because the criminal information alleged that he had previously been convicted of drug-related offenses, and the Commonwealth failed to present any evidence of prior convictions at trial, the Commonwealth failed to meet its burden of proof, and his convictions ought to be reversed. Appellant frames this as a sufficiency of the evidence argument, but this is only so if we first agree that the Commonwealth's allegations of prior drug-related convictions in the criminal information are elements of the crimes with which he was charged. We do not agree.

There is no dispute that the criminal information in the instant case sufficiently set forth the elements of the crimes. Appellant asserts, however, that because in counts one and three of the criminal information it was alleged that appellant “was previously convicted of an offense under clause (30) of subsection (a) of Section 13 of the Controlled Substance, Drug, Device and Cosmetic Act ...,” this became an element of the crime that had to be proven at trial. ( See appellant's brief at 15.) Appellant primarily relies on Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300 (1973), and Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979), for this assertion.

In Lambert, the defendant was specifically charged with “corrupting the morals [of a minor] by furnishing dangerous drugs....” Lambert, 313 A.2d at 301. This court found that by “specifically...