J-A13024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES BUNDRIDGE,

                        Appellant                   No. 1583 WDA 2013


    Appeal from the Judgment of Sentence Entered September 30, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000440-2013


BEFORE: PANELLA, SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 18, 2015

     Appellant, James Bundridge, appeals from the judgment of sentence

entered following his convictions for possession of a controlled substance,

possession with intent to deliver, and disorderly conduct. We affirm.

     The trial court summarized the factual history of this case as follows:

            Ronald Croll, a police officer with the municipality of
     Monroeville, testified that on November 18, 2012 [A.S.] came
     into the police department to report that she had been assaulted
     by her live-in boyfriend, William Darnell Burkes. [A.S.] had
     obvious physical injuries. She told Officer Croll that she believed
     that [Mr. Burkes] was still at the residence she shared with him
     at 112 Cambridge Square Apartments. After documenting her
     injuries and taking her statement, Office[r] Croll proceeded to
     the Cambridge Square Apartments, intending to arrest Mr.
     Burkes. He was accompanied by an Officer Renk. He also
     requested back-up from a Sergeant McConnell and an Officer
     Pascarella, as he encountered them in the police station parking
     lot.    They all then proceeded to the Cambridge Square
     Apartments.
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           Officer Croll had dealt with Mr. Burkes in the past and
     would know him to see him. He did not know if either Officer
     Pascarella or Sergeant McConnell knew him, but gave them a
     brief description indicating he was a black male, approximately
     5’6” to 5’8” tall. He related that the incident was a domestic and
     that he intended to arrest [Mr. Burkes] for simple assault.
     Officer Croll said that he requested backup because he knew
     from prior experience that [Mr. Burkes] was elusive and evasive
     and would attempt to [elude] police if he knew he was going to
     be arrested.

            When they arrived at the apartment, Officer[s] Croll and
     Renk went to the front of the building while Sergeant McConnell
     and Officer Pascarella traveled to the rear of the building. All
     officers, except Renk, were in uniform and driving marked police
     vehicles. When he approached the main door to the apartment
     building, Officer Croll heard some banging noise from within. As
     he entered the building, he saw an African American male
     walking away from him. Though he knew it was not [Mr.
     Burkes], he spoke briefly with him to determine if he had been
     with [Mr. Burkes] and could provide information. Just as he
     asked this individual’s name, he heard a radio call from either
     Sergeant McConnell or Officer Pascarella, indicating they had
     arrested a person in the back. Sergeant Croll immediately ran
     out the back door where he observed a black male lying on the
     ground, handcuffed. He recognized that the person in custody
     was not Darnell Burkes and told the other officers this. He then
     returned to the apartment building, secured the help of a
     maintenance man to gain entry to the victim’s apartment and
     arrested [Mr. Burkes].

           Monroeville Police Officer Keith Pascarella also testified.
     He had been told by Officer Croll that the [sic] Burkes had a
     tendency to try to elude police. He was not familiar with Mr.
     Burkes and the only description he [had] was that he was a
     black male of medium height. Officer Pascarella described what
     happened as he and Sgt. McConnell reached the back of the
     building:

          As we approached the steps, Sergeant McConnell
          went upstairs, three or four steps to the landing. As
          soon as he got on top of the building, a black male
          came out of the back door, came out of the door.
          The door swung toward Sergeant McConnell. He

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            kind of side stepped that. He tried to grab the black
            male.     He pushed through Sergeant McConnell,
            spinning back towards me. At that time, I was on
            the porch, tried to grab the male, missed him. I
            pulled my taser, turned and deployed it.

             Officer Pascarella believed that the person trying to avoid
      him was Darnell Burkes. He told him to stop and, when he did
      not, used his taser to subdue him. He said that the actor was
      holding a bag and he looked in the bag as they were subduing
      the actor and placing him in handcuffs. Inside the bag, he
      observed large amounts of cash, what were obviously
      individually wrapped packets of heroin, a scale and other drug
      paraphernalia.     After the actor was arrested, Officer Croll
      emerged and told them that the person they had in custody was
      not Darnell Burkes.

Trial Court Opinion, 6/25/14, at 3-5 (internal citations omitted).

      Appellant was charged with one count each of possession of a

controlled substance, possession with intent to deliver, and disorderly

conduct.   Prior to trial, Appellant filed a motion to suppress, seeking to

“exclude the evidence obtained as a result of the unlawful search and

seizure of [Appellant].” Omnibus Pretrial Motion, 4/15/13, at 4. Following a

suppression hearing on July 18, 2013, the trial court denied Appellant’s

motion.

      Thereafter, Appellant waived his right to a jury trial and proceeded to

a nonjury trial. At the conclusion of trial, Appellant was adjudged guilty of

all three counts.   He was sentenced on September 30, 2013, to one year

less one day to two years less two days, with credit for time served, for the

possession with intent to deliver charge. A consecutive period of three years

of probation was also imposed.      He was paroled after serving forty-eight

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hours. No further penalty was imposed on the remaining two counts. Order

of Sentence, 9/30/13, at 1.

      Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1.   Did the trial court err in denying Appellant’s motion to
      suppress when the warrantless arrest of Appellant was without
      probable cause?

      2.    Did the trial court err in denying Appellant’s motion to
      suppress when the warrantless search of a bag found next to
      Appellant was without probable cause?

Appellant’s Brief at 4.

      In both issues, Appellant argues that the trial court erred in denying

his motion to suppress. The standard of review an appellate court applies

when considering an order denying a suppression motion is well established.

An appellate court may consider only the Commonwealth’s evidence and so

much of the evidence for the defense as remains uncontradicted when read

in the context of the record as a whole.    Commonwealth v. Russo, 934

A.2d 1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846

A.2d 75 (Pa. 2004)). Where the record supports the factual findings of the

trial court, the appellate court is bound by those facts and may reverse only

if the legal conclusions drawn therefrom are in error. Id. However, it is also

well settled that the appellate court is not bound by the suppression court’s




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conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455

(Pa. 2003)).


            With respect to factual findings, we are mindful that it is
      the sole province of the suppression court to weigh the credibility
      of the witnesses. Further, the suppression court judge is entitled
      to believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this [C]ourt.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted).    In addition, we are aware that questions of the

admission and exclusion of evidence are within the sound discretion of the

trial court and will not be reversed on appeal absent an abuse of discretion.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

      Appellant first argues that the totality of the circumstances did not

establish sufficient probable cause to justify the arrest of Appellant.

Appellant’s Brief at 13.       Appellant contends that the general physical

description given of Mr. Burkes was not sufficient to justify the arrest of

Appellant.     Id. at 14-16.    Appellant further asserts that the fact that

Appellant exited the building at a high rate of speed and ran from the

officers did not create probable cause.     Id. at 17-19. Appellant maintains

that the officers’ mistaken belief that Appellant was Mr. Burkes did not

create probable cause to justify the arrest of Appellant. Id. at 20-23.




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         An arrest must be supported by probable cause. Commonwealth v.

Cauley, 10 A.3d 321, 325 (Pa. Super. 2010). An officer has probable cause

to make a warrantless arrest “when the facts and circumstances within the

police    officer’s   knowledge   and   of   which   the   officer   has   reasonably

trustworthy information are sufficient in themselves to warrant a person of

reasonable caution in the belief that an offense has been committed by the

person to be arrested.” Commonwealth v. Dommel, 885 A.2d 998, 1002

(Pa. Super. 2005).        “Probable cause justifying a warrantless arrest is

determined by the totality of the circumstances.... Furthermore, probable

cause does not involve certainties, but rather the factual and practical

considerations of everyday life on which reasonable and prudent persons

act.”    Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008)

(citations and quotation marks omitted).

         Moreover, 18 Pa.C.S. § 2711(a) provides as follows:

         § 2711.      Probable cause arrests in domestic violence
         cases

                (a) General rule.--A police officer shall have the same
         right of arrest without a warrant as in a felony whenever he has
         probable cause to believe the defendant has violated section
         2504 (relating to involuntary manslaughter), 2701 (relating to
         simple assault), 2702(a)(3), (4) and (5) (relating to
         aggravated assault), 2705 (relating to recklessly endangering
         another person), 2706 (relating to terroristic threats) or 2709.1
         (relating to stalking) against a family or household member
         although the offense did not take place in the presence of the
         police officer. A police officer may not arrest a person pursuant
         to this section without first observing recent physical injury to
         the victim or other corroborative evidence. For the purposes of
         this subsection, the term “family or household member” has the

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     meaning given that term in 23 Pa.C.S. § 6102 (relating to
     definitions).

18 Pa.C.S. § 2711(a)(emphasis added).      Pursuant to 23 Pa.C.S. § 6102,

“family or household member” is defined as follows:

     Spouses or persons who have been spouses, persons living as
     spouses or who lived as spouses, parents and children, other
     persons related by consanguinity or affinity, current or former
     sexual or intimate partners or persons who share biological
     parenthood.

     Given the totality of circumstances, the officers had probable cause to

arrest Mr. Burkes.   The victim advised Officer Croll that Mr. Burkes, a

member of the victim’s household, had assaulted her.      [A.S.] had visible

signs of having been assaulted.    The offense of simple assault is amongst

the enumerated offenses for which a warrantless arrest is permitted under

18 Pa.C.S. § 2711.       Thus, the officers had the authority to conduct a

warrantless arrest of Mr. Burkes pursuant to 18 Pa.C.S. § 2711(a).

     Furthermore, pursuant to Hill v. California, 401 U.S. 797, 802

(1971), when police have probable cause to arrest one party and they

reasonably mistake a second party for the first party, the arrest of the

second party is valid.    See also Commonwealth v. Wright, 867 A.2d

1265, 1268 (Pa. Super. 2005) (where wrong individual was mistakenly

arrested, his subsequent convictions were upheld because officers had

probable cause to arrest proper individual, and the mistaken arrest was

reasonable and understandable under the circumstances of the case).




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      As noted, officers had probable cause to arrest Mr. Burkes.          The

officers mistakenly apprehended Appellant, believing him to be Mr. Burkes.

Given the totality of circumstances, we conclude that their misidentification

of Appellant was reasonable.    Specifically, Officer Croll had given a brief

physical description of Mr. Burkes that also matched Appellant’s physical

appearance.    Appellant was at the same apartment building where the

officers expected to find Mr. Burkes. Officer Croll advised the officers that,

based on his prior behavior, Mr. Burkes would attempt to elude the officers.

Appellant ran past the officers and refused to stop even when ordered to do

so.   Accordingly, the trial court’s conclusion that the officers reasonably

mistook Appellant for Mr. Burkes is supported by evidence of record.        As

such, we agree that the arrest of Appellant was valid. Hill, 401 U.S. at 802;

Wright, 867 A.2d at 1268. Thus, Appellant’s first claim lacks merit.

      In his second issue, Appellant argues that the trial court erred in

failing to suppress the drugs recovered from Appellant’s bag.       Appellant’s

Brief at 23.   Appellant maintains that because his arrest was illegal, the

evidence obtained incident to that arrest was fruit of the poisonous tree, and

therefore, must be suppressed. Id. Appellant avers that even if Appellant’s

arrest was lawful, the search of the bag was illegal as it fails to meet the

standard of a valid search incident to an arrest.      Id. at 24.    Appellant

contends that a search of the bag cannot be justified as the contents of the

bag were not in his immediate control.       Id.   While Appellant does not


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dispute that the bag was in the immediate vicinity of his person at the time

of the arrest, the bag was not searched until after Appellant was placed into

custody, and therefore, Appellant asserts, there was no way Appellant could

exercise control over the contents of the bag. Id. at 24-25.

      “An officer may conduct a full custodial search of a suspect when the

suspect is lawfully arrested.”   Commonwealth v. Thompson, 778 A.2d

1215, 1221 (Pa. Super. 2001).      Thus, as long as an officer has probable

cause to arrest at the time of the search, an officer is permitted to search an

arrestee pursuant to a lawful arrest. Id. at 1222. The scope of the search

encompasses the person and the immediate area in which the person was

detained. Commonwealth v. Dixon, 997 A.2d 368, 380 n.18 (Pa. Super.

2010) (quoting Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995)).

Our Supreme Court has stated the following with regard to the area that

may be searched incident to an arrest:

             The Supreme Court of the United States and this Court
      have held that the scope of a search incident to arrest extends
      not only to the arrestee’s person, but also into the area within
      the arrestee’s “immediate control.” Chimel v. California, 395
      U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969);
      Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d 128, 130
      (1995). While the breadth of the area that falls within the
      arrestee’s “immediate control” has been the subject of much
      debate, a warrantless search must be “strictly circumscribed by
      the exigencies which justify its initiation.” Mincey v. Arizona,
      437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978);
      Commonwealth v. Wright, 560 Pa. 34, 742 A.2d 661, 665
      (1999), reconsideration denied (February 25, 2000). The two
      historical rationales for the search incident to arrest exception to
      the warrant requirement are (1) the need to disarm the suspect


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     in order to take him into custody and (2) the need to preserve
     evidence for later use at trial.

Commonwealth v. Taylor, 771 A.2d 1261, 1271 (Pa. 2001) (internal

footnote omitted).

     Thus, we have held that the scope of such a search includes containers

and clothing that are in the arrestee’s possession at the time of his arrest.

See Commonwealth v. Guzman, 612 A.2d 524, 527 (Pa. Super. 1992),

abrogated on other grounds, Commonwealth v. Bell, 645 A.2d 211 (Pa.

Super. 1994) (holding that satchel carried by arrestee at time of arrest was

validly searched incident to the arrest); Commonwealth v. Trenge, 451

A.2d 701, 710 (Pa. Super. 1982) (holding police lawfully searched shoulder

bag that was on appellant’s person when he was arrested). Additionally, a

warrantless   search   incident   to     an     arrest   must   be   substantially

contemporaneous with the arrest.        Commonwealth v. Wright, 742 A.2d

661, 665 (Pa. 1999) (citing Shipley v. California, 395 U.S. 818, 819

(1969)).

     Here, Officer Pascarella testified that as Appellant was running out of

the apartment building past the officers, Officer Pascarella noticed that

Appellant was carrying a bag in his hand.         N.T., 7/18/13, at 19.    Officer

Pascarella testified that after Appellant was tased, Appellant fell to the

ground, and the bag was “laying on the ground next to him.”            Id. at 21.

Immediately after Appellant was handcuffed, the officers searched the bag.

Id. at 20-21. Within that bag, the officers found $11,000.00, four bricks of

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suspected heroin in multiple loose packets, stamp bags, drug paraphernalia,

a digital scale, cigar blunt, cigars, and other items. Id. at 21. Officer Croll

came out of the building and advised the officers that they had the wrong

individual in custody after the officers had searched the bag. Id.

      As discussed above, we have determined that the arrest of Appellant

was lawful.   As such, the officers were permitted to conduct a search

incident to that lawful arrest. The record reflects that Appellant was carrying

a bag with him. The bag was in the immediate area in which Appellant was

detained. Furthermore, the search of the bag was conducted substantially

contemporaneously with his arrest. Also of importance is the fact that the

search of the bag was conducted prior to the officers being notified that the

person in custody, Appellant, was not Darnell Burkes.      Thus, we conclude

that the seizure of the contraband in Appellant’s possession was not

unlawful.

      We also find no merit to Appellant’s claim that the search of his bag

was not lawful because he was handcuffed and therefore could not exercise

control over the contents of the bag. Appellant’s Brief at 24-25. As noted, a

search incident to an arrest includes the search of the person and the

immediate area in which the person was detained, as well as clothing and

containers in the arrestee’s possession at the time of arrest.    Taylor, 771

A.2d at 1271; Guzman, 612 A.2d at 527; Trenge, 451 A.2d at 710.

Additionally, this Court has held that “a search of a person conducted at a


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later time (rather than contemporaneously with the actual arrest) is likewise

valid.”   Commonwealth v. Ventura, 975 A.2d 1128, 1139 (Pa. Super.

2009).

      In Ventura, the appellant was transported to the police station

following a bar altercation.   Id. 975 A.2d at 1132.          Upon arrival at the

station, police briefly searched him, but did not uncover anything.            Id.

Later, while monitoring Ventura in his holding cell via video surveillance,

police witnessed him trying to put something in his jacket.            Id.   Police

conducted a second search and recovered a knife inside the lining of one of

Ventura’s jacket pockets. Id. On appeal, Ventura argued that the trial court

erred by denying suppression of the bloody knife seized from his jacket

because police acted without a search warrant for that search. Id. at 1139.

In support of his claim, Ventura stated that he was not wearing the jacket at

the time police conducted the search.          Id.   In holding that the search of

Ventura’s jacket was a lawful warrantless search incident to his arrest, we

provided the following explanation:

            The taking of the [coat], which [the arrestee] was wearing
      at the time of his arrest, constituted a search incident to a lawful
      arrest. The mere fact that the seizure of the coat was not
      contemporaneous with the seizure of the person of the appellant,
      but rather occurred after he had been removed to the place of
      detention, does not prevent the seizure from being considered
      incident to the arrest.

Id. (quoting Commonwealth v. Bundy, 328 A.2d 517, 520 (Pa. 1974));

see also Guzman, 612 A.2d at 527 (citing United States v. Edwards, 415


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U.S. 800, 804 (1974)) (“The United States Supreme Court held that once an

accused has been lawfully arrested and is in custody, anything that was

subject to search and seizure at the time and place of arrest may be lawfully

searched without a warrant, even after a substantial amount of time has

lapsed following arrest.”). Thus, even when an arrestee is in custody and

his belongings are secure in police possession, they can be searched without

a warrant as a search incident to arrest as long as they were subject to

search and seizure at the time of the arrest. Ventura, 975 A.2d 1128 at

1139; Guzman, 612 A.2d at 527.

     Accordingly,   to   the   extent     that   Appellant’s   bag   was   searched

immediately subsequent to his arrest and being handcuffed, the fact that

these items were not in his possessive control does not make the search

unlawful. Appellant had the bag with him when he attempted to elude the

police, was tased and arrested.    Therefore, the bag was subject to search

and seizure at the time of his arrest.       Thus, the search of this bag was a

lawful search conducted incident to Appellant’s arrest.              The trial court

properly denied Appellant’s motion to suppress this evidence.

     Judgment of sentence affirmed.




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J-A13024-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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