J-S96001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSHUA BAVIN,

                        Appellant                   No. 1416 WDA 2014


     Appeal from the Judgment of Sentence Entered February 7, 2014
            In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0001914-2013


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED JANUARY 19, 2017

      Appellant, Joshua Bavin, appeals from the judgment of sentence of an

aggregate term of 5 to 15 years’ incarceration, followed by 4 years’

probation, imposed after he was convicted of multiple counts of drug-related

offenses. Appellant challenges the trial court’s denial of his pretrial motion

to suppress, as well as the legality of a mandatory-minimum sentence

imposed in his case. After careful review, we affirm Appellant’s convictions,

but vacate his judgment of sentence and remand for resentencing.

      In January of 2013, Appellant was arrested and charged with two

counts of possession with intent to deliver a controlled substance, 35 P.S. §

780-113(a)(30); two counts of possession of a controlled substance, 35 P.S.

§ 780-113(a)(16); and one count of criminal conspiracy, 18 Pa.C.S. § 903.

Prior to trial, Appellant filed a motion to suppress evidence, and a hearing
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was conducted on November 13, 2013.        At the close of that proceeding, the

trial court denied Appellant’s motion.     His case proceeded to a jury trial,

where Appellant was convicted of the above-stated offenses.           He was

sentenced to the aggregate term stated, supra, on February 7, 2014.

      Appellant filed a timely post-sentence motion, which the court denied.

He then filed a timely notice of appeal and, following a lengthy delay in

obtaining transcripts, he also timely complied with the trial court’s order to

file a Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion in

May of 2016. Herein, Appellant raises two issues for our review, which we

have reordered for ease of disposition:

      1. Whether the [t]rial [c]ourt erred when it denied [Appellant’s]
      motion to suppress when [Appellant] was seized without
      sufficient reasonable suspicion or probable cause?

      2. Whether the [t]rial [c]ourt erred in sentencing [Appellant] to a
      mandatory minimum sentence under 18 Pa.C.S.A. §
      7508(a)(7)(iii)   when     such     mandatory     sentences     are
      unconstitutional under Alleyne v. United States, - U.S. -, 133
      S.Ct. 151 (2013); Commonwealth v. Newman, 99 A.3d 86
      (Pa. Super. 2014) (en banc)[;] and Commonwealth v.
      Fennell, 101 A.3d 13 (Pa. Super. 2014)?

Appellant’s Brief at 4.

      Our standard of reviewing the denial of a suppression motion is as

follows:

      In reviewing an order from a suppression court, we consider the
      Commonwealth’s evidence, and only so much of the defendant’s
      evidence as remains uncontradicted. We accept the suppression
      court’s factual findings which are supported by the evidence and
      reverse only when the court draws erroneous conclusions from
      those facts.


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Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

       Before delving into Appellant’s specific suppression claims, we first

summarize the pertinent evidence presented at the suppression hearing, and

the legal conclusions reached by the trial court based on that evidence.

       Detective Ryan Martin testified first for the Commonwealth. He stated

that at approximately 9:40 p.m. on January 22, 2013, a known and reliable

confidential informant (hereinafter, “CI”) called him with information about

“a short white male with short hair” who had been “traveling in the

Northside area of the City of Pittsburgh distributing large amounts of

heroin.”    N.T., 11/13/13, at 13.1            Detective Martin testified that he had

received other complaints about “large quantities of narcotics being

distributed on the Northside area of the City of Pittsburgh” within the two

weeks preceding the CI’s call.         Id.     The CI told him that the short, white

male with short hair was going to be traveling with a white female to the

Giant Eagle on Rodi Road in Penn Hills, which is just outside the City of

Pittsburgh, for the purpose of selling heroin to a white female.           Id. at 14,

15.   The CI explained that the white male would be driving a “light blue

Chevy” and was going to meet the white, female buyer at the “front
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1
  The reliability of the CI in this case is not in dispute. However, we note
that Detective Martin testified that, within the two weeks prior to January
22, 2013, that same CI had provided Detective Martin with information that
led to a seizure of nine bricks (or 450 stamped bags) of heroin and a felony
arrest in an unrelated case. N.T. at 15.



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entrance of the Giant Eagle parking lot.” Id. at 15. That specific shopping

plaza is a high crime area, with “[t]he sale and use of narcotics” being “the

most prevalent type of crime in that area.” Id. at 57.

       Based on the CI’s information, Detective Martin and another detective

set up surveillance at the Giant Eagle parking lot. Id. at 16-17. Once there,

the detective received another call from the CI, who stated that the white

male in the light blue Chevrolet would be arriving at the Giant Eagle “[i]n

approximately five minutes.” Id. at 17. Approximately five minutes later,

Detective Martin “observed a light blue Chevy Cobalt pull into the Giant

Eagle parking lot and park in front of the front entrance of the Giant Eagle.”

Id.   Inside the car, Detective Martin could see “a white male driver with

short hair,” and “a white female passenger.” Id. At that point, Detective

Martin “radioed the assisting detectives to approach the vehicle.” Id. At the

suppression hearing, Detective Martin identified Appellant as the driver of

the Chevrolet vehicle. Id. at 18.

       Detective Brian Burgunder testified that he was one of the officers who

approached Appellant’s vehicle.2           He could not specifically recall if the
____________________________________________


2
  Appellant contends that twelve officers approached his car, but the record
does not support that claim. Instead, the evidence demonstrated that there
were as many as twelve officers present at the scene, but only seven of
those officers actually approached Appellant’s vehicle. See N.T. at 36-37,
38-39. More specifically, three officers approached the passenger side
window of the car, while four officers approached the driver’s side window.
Id. at 38-39.




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officers advanced toward the vehicle with their guns drawn, but he testified

that doing so would have been “protocol” in this type of situation. Id. at 46.

Detective Burgunder stated that all the officers who approached the vehicle

had police badges clearly displayed, and he “was verbally telling [Appellant

they were] Pittsburgh Police….” Id. at 47.

       Detective Burgunder was the officer who first spoke to Appellant. The

detective testified that he had a “brief” conversation with Appellant “in

normal voice levels” and his gun was not drawn at that point.           Id. at 47,

48.3 He testified that the conversation with Appellant went as follows:

       [Detective Burgunder]: I explained to [Appellant] that we
       believed he was in the area to conduct a narcotics transaction
       involving heroin and prescription narcotic pills. At that point[,
       Appellant] said that he didn’t have anything on his person. I
       subsequently asked him if he would consent to a search of his
       person and the vehicle, and he immediately complied.

Id. at 47. The female passenger in Appellant’s vehicle also consented to a

search of her person.         Id. at 53.       Ultimately, the search revealed 100

Oxycodone pills in Appellant’s pocket, as well as “eight bricks of heroin plus

48 bags, [a] spoon, and a rubber tourniquet” in the female passenger’s

pants. Id.
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3
  Detective Burgunder initially claimed that his conversation with Appellant
occurred while Appellant “was still seated in the vehicle.” Id. at 47.
However, on cross-examination, the detective effectively changed his
testimony, acknowledging that he “ordered [Appellant] out of the vehicle,
[Appellant] immediately complied, and then this conversation took place.”
Id. at 50-51. For purposes of our review, we will presume that Appellant
was ordered out of the vehicle prior to his conversation with the detective.



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      Based on this evidence, trial court concluded that Appellant was

subjected to an investigative detention that was supported by reasonable

suspicion.   Id. at 69.       The court emphasized that there was “a known

reliable   informant”   and    “the   information   [was]   corroborated   by   the

observations of the officers….”       Id. at 69.    The court also noted that the

location of the detention was known to be a “high drug trafficking area.” Id.

at 70. Therefore, the court concluded that the stop of Appellant was legal

and, because he ultimately consented to the search of his person, that

search was legal, as well. See Trial Court Opinion (TCO), 5/3/16, at 8.

      On appeal, Appellant contends that his interaction with police

constituted “a custodial detention for which law enforcement lacked

sufficient probable cause to justify the seizure of his person.”      Appellant’s

Brief at 22 (emphasis omitted). Alternatively, Appellant claims that even if

he was only detained for investigation, officers did not have reasonable

suspicion to validate that detention.         Finally, Appellant argues that his

consent to search his person “was a product of the illegal detention and was

not independently and voluntarily given.” Id. at 25 (emphasis omitted).

      In assessing Appellant’s claims, we are mindful that,

      Pennsylvania case law recognizes three categories of interaction
      between police officers and citizens. The first is a mere
      encounter, which need not be supported by any level of
      suspicion. The second is an investigative detention, which must
      be supported by reasonable suspicion. This interaction subjects a
      suspect to a stop and a period of detention, but does not involve
      such coercive conditions as to constitute the functional
      equivalent of an arrest. The third category, a custodial detention,
      must be supported by probable cause. The police have probable

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      cause where the facts and circumstances within the officer's
      knowledge are sufficient to warrant a person of reasonable
      caution in the belief that an offense has been or is being
      committed.

Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

      Here, we initially agree with the trial court that Appellant was

subjected to an investigative detention, rather than an arrest. Our Supreme

Court has declared that,

      [t]he factors typically considered in determining whether a
      detention is investigative or custodial are:

         the basis for the detention (the crime suspected and the
         grounds for suspicion); the duration of the detention; the
         location of the detention (public or private); whether the
         suspect was transported against his will (how far, why);
         the method of detention; the show, threat or use of force;
         and, the investigative methods used to confirm or dispel
         suspicions.

In Interest of S.J., 713 A.2d 45, 47 (Pa. 1998) (quoting Commonwealth

v. Gommer, 445 Pa.Super. 571, 581, 665 A.2d 1269, 1274 (1995)

(citations omitted)).

      Here, the basis for the detention was a tip from a reliable CI that a

man matching Appellant’s description was travelling to a specific location,

with a white female passenger, in a specific color and make of vehicle, at a

specific time, and for the purpose of selling heroin. Appellant was ultimately

detained in a public parking lot of a grocery store. During that detention, he

was not transported anywhere.      Additionally, the evidence indicated that

Appellant’s detention was brief in duration.        For instance, Detective


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Burgunder testified that he approached Appellant’s vehicle, immediately

asked Appellant to exit the car, and informed Appellant that he was

suspected of being in the area to sell heroin and prescription pills. Appellant

then denied that he possessed any narcotics and consented to a search of

his person.     These facts support that the detective “diligently pursued a

means of investigation that was likely to confirm or dispel [his] suspicions

quickly….” Commonwealth v. Douglass, 539 A.2d 412, 421 (Pa. Super.

1988) (discussing the factors to consider in determining if a detention is “too

long in duration to be justified as an investigative stop”) (citations omitted).

       In regard to the factor of whether the officers showed, threatened or

used force, we recognize that seven officers approached Appellant, likely

with their weapons drawn, and Detective Burgunder immediately ordered

him to exit his vehicle.      Certainly, these acts constitute a showing of force.

However, this Court concluded in Commonwealth v. Johnson, 849 A.2d

1236 (Pa. Super. 2004), that five officers’ approaching Johnson’s vehicle

with their guns at their sides still constituted an investigative detention, not

an arrest.    Id. at 1238.       In reaching this decision, we stressed that the

officers did not have their guns pointed at Johnson. Id. at 1239.4 In this


____________________________________________


4
  The Johnson panel also noted that the officers’ decision to ready their
weapons when approaching Johnson’s car for the purpose of a criminal
investigation was “prudent and safe[,]” as “[a]n officer approaching a car
cannot see if there is a weapon being held below the level of the car
window.” Johnson, 849 A.2d at 1239.



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case, even if we presume that the seven officers who approached Appellant’s

vehicle had their weapons drawn as ‘protocol,’ there was no evidence

suggesting that they had their weapons pointed at Appellant.

      Additionally, both our Supreme Court and this Court have recognized

that ordering a person out of his or her vehicle is indicative of a detention,

but does not necessarily escalate the detention to an arrest.                See

Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002)

(listing cases that “have applied [the ‘investigative detention’] standard in

the context of motor vehicle stops during which police have ordered a

motorist or his passengers to disembark”).         Here, Detective Burgunder

testified that his weapon was not drawn when he directed Appellant to exit

the vehicle, and he did not threaten Appellant in any manner in ordering him

to do so. N.T. at 48. Moreover, there was no evidence that Appellant was

forcibly removed from the car; rather, the detective testified that Appellant

“immediately complied” with the order to get out. Id. at 51. There was also

no evidence suggesting that Appellant was subjected to force after he

stepped out of the car. For instance, Appellant was not placed in handcuffs,

put into the back of a police car, ordered to lie on the ground, or directed to

place his hands on his head or on the hood of the vehicle.

      In sum, the factors outlined in S.J., and this Court’s decision in

Johnson, support the trial court’s decision that Appellant was subjected to

an   investigative   detention,   rather   than   to   a   custodial   detention.




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Consequently, we must next assess whether there was reasonable suspicion

to support that detention. See Caban, 60 A.3d at 127.

       Again, Johnson is instructive, as the facts of that decision closely

mirror those of the present case. In Johnson,

       [o]n the date of the arrest, October 2, 2002, Officer DeFrancesco
       received information from a confidential informant (C.I.) that a
       young, stocky, African–American male would be delivering
       marijuana in a blue Oldsmobile on the 6700 block of Market
       Street in Upper Darby, PA. Later, Officer DeFrancesco received
       more information from the C.I. stating that the time of delivery
       would be between 6:00 and 10:00 p.m. The information was
       received shortly before 6:00 p.m., and five officers immediately
       set up a surveillance. A man fitting the description in a car fitting
       the description arrived in the location.

       The officers approached the car, with their guns drawn but at
       their sides.

Johnson, 849 A.2d at 1237. Ultimately, the Johnson panel held that,

       based on the information given by a C.I. who had proven to be
       reliable in the past, when a man fitting the description arrived at
       the appointed location in a car similar to the one that had been
       described by the C.I., the police had reasonable suspicion that
       criminal activity was afoot.    The officers acted properly by
       approaching the car to investigate. Under these facts, they were
       permitted to stop [Johnson] for a brief period of detention.

Id.5




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5
  We acknowledge that after officers approached Johnson’s car, they
observed a bag of marijuana in his back seat and smelled an odor of
marijuana emanating from his vehicle. See Johnson, 849 A.2d at 1237.
These facts led to Johnson’s arrest, but they did not factor into our Court’s
assessment of the lawfulness of his detention.



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      As in Johnson, here, Detective Martin received a tip from a reliable CI

that had provided accurate information just two weeks prior to the

information he supplied about Appellant.       Also similar to Johnson, the CI

gave Detective Martin detailed information about the drug that was to be

delivered (in this case, heroin), a physical description of Appellant, and a

general description of his vehicle.     Additionally, the CI in this case also

stated that a white, female passenger would be in Appellant’s car, and the

CI gave a more definitive time-frame of Appellant’s arrival than the four-

hour window provided by the CI in Johnson.          Specifically, the CI notified

Detective Martin that Appellant would be arriving at the Giant Eagle within

five minutes. Five minutes later, Detective Martin observed a car matching

the one described by the CI, and driven by Appellant, who fit the physical

description provided by the CI.        A white female was in the car with

Appellant, which further aligned with the CI’s information.         Additionally,

Appellant parked his car at the front entrance of the store, just as the CI

said he would do. Finally, that specific Giant Eagle shopping plaza is a high-

crime area known for narcotics transactions. Based on the totality of these

facts, which mirror - if not exceed - those in Johnson, we conclude that

Detective Martin had reasonable suspicion to order the investigative

detention of Appellant.

      Finally, we reject Appellant’s claim that his consent to the search was

involuntary. Notably, Appellant’s argument is grounded on his claim that his

detention was illegal, which is meritless for the reasons stated supra.

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Moreover, the evidence presented at the suppression hearing does not

support a conclusion that Appellant’s consent was coerced.        Importantly,

Detective Burgunder testified that after Appellant complied with the order to

get out of the vehicle, the detective and Appellant had a “conversation … in

normal voice levels[,]” during which Appellant was informed that he was

suspected of being “in the area to conduct a narcotics transaction….” N.T. at

47, 48.   When Appellant responded “that he didn’t have anything on his

person[,]” the detective “asked [Appellant] if he would consent to a search

of his person and the vehicle, [and Appellant] immediately complied.” Id. at

47.   Detective Burgunder testified that there were “absolutely” no threats

made to Appellant before Appellant consented to that search.        Id.   Thus,

there is no basis on which to conclude that Appellant’s consent, which

followed his lawful detention, was involuntary.

      For all of these reasons, we conclude that the trial court did not err in

determining that Appellant was subjected to an investigative detention that

was supported by reasonable suspicion, and that he voluntarily consented to

the search of his person and the vehicle. Accordingly, Appellant’s challenge

to the court’s denial of his motion to suppress is meritless.

      Next, Appellant challenges the legality of a five-year mandatory

minimum sentence, imposed pursuant to 18 Pa.C.S. § 7508(a)(7)(iii) (based

on the aggregate weight of the drugs he possessed with intent to deliver).

Appellant contends that this sentence is now illegal under the United

Supreme Court’s ruling in Alleyne, and this Court’s decisions in Newman

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and Fennell.6       The Commonwealth and the trial court both agree with

Appellant, as do we. See TCO at 5-6; Commonwealth’s Brief at 6. Because

section 7508 has been invalidated in the wake of Alleyne, and Appellant is

currently appealing from his judgment of sentence, we vacate the illegal,

mandatory minimum term imposed under section 7508, and remand for

resentencing for that offense.7

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.




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6
   See Alleyne, 133 S.Ct. at 2163 (holding that “facts that increase
mandatory minimum sentences must be submitted to the jury” and found
beyond a reasonable doubt); Newman, 99 A.3d at 97-98, 101-102 (holding
that the ‘proof at sentencing’ provision contained in 42 Pa.C.S. § 9712.1,
and many other mandatory minimum sentencing statutes in this
Commonwealth, violates Alleyne and is not severable from the non-
offending portions of the statute, thus rendering the statute unconstitutional
in its entirety); Fennell, 105 A.3d at 20 (concluding that 18 Pa.C.S. § 7508
is unconstitutional in its entirety under Alleyne and Newman).
7
  We conclude that our disposition does not upset the court’s overall
sentencing scheme, so we need not vacate Appellant’s other sentences. See
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (stating
that if our disposition upsets the overall sentencing scheme of the trial court,
we must remand so that the court can restructure its sentence plan).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




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