J-A09024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellant

                    v.

ALBERTO R. GARCIA

                         Appellee                        No. 3503 EDA 2012


                 Appeal from the Order November 26, 2012
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014673-2011


BEFORE: BOWES, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 29, 2014

      The Commonwealth of Pennsylvania appeals from the order entered on

November 26, 2012, in the Court of Common Pleas of Philadelphia County,

suppressing physical evidence, specifically one kilogram of cocaine, found in



searched Garcia, with his consent, after he picked up luggage following his

arrival at Philadelphia International Airport on a flight from Puerto Rico. The

Commonwealth claims the trial court erred in classifying the encounter

between   law   enforcement    and   Garcia   as    an    investigative   detention

unsupported by reasonable suspicion.     Following a thorough review of the
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                            1
                                the certified record, and relevant law, we reverse

and remand for further proceedings.

       Initially, we note,

       [i]n a criminal case, ... the Commonwealth may take an appeal
       as of right from an order that does not end the entire case where
       the Commonwealth certifies in the notice of appeal that the
       order will
       The pretrial suppression of evidence critical to the prosecution is
       an appropriate basis for a [Pa.R.A.P.] Rule 311(d) appeal.

Commonwealth           v.       Brugger,   88    A.3d   1026,   1033   (Pa.   Super.

2014)(citation omitted). The Commonwealth has properly certified the order

under appeal will substantially handicap the prosecution.

       The applicable standard of review when the Commonwealth appeals

from a suppression order is as follows:

       When the Commonwealth appeals from a suppression order, we
       follow a clearly defined standard of review and consider only the
       evidence from the defendant's witnesses together with the
       evidence of the prosecution that, when read in the context of the
       entire record, remains uncontradicted. The suppression court's
       findings of fact bind an appellate court if the record supports
       those findings. The suppression court's conclusions of law,
       however, are not binding on an appellate court, whose duty is to
       determine if the suppression court properly applied the law to
       the facts.

Commonwealth           v.    Newman,       84    A.3d   1072,   1076   (Pa.   Super.

2014)(citation omitted).



____________________________________________


1




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       We recite the factual history as related by the trial judge in her

Pa.R.A.P. 1925(a) opinion.


       presented the testimony of arresting agent, DEA Interdiction
       Unit Agent Alan Basewitz and Trooper Alfredo [sic] Moreno[2] of
       the Mass Transportation Interdiction Task Force Group. Viewing
       the evidence in the light most favorable to the defendant, as the
       motion winner, the testimony of these witnesses established the
       following. On October 31, 2011, Agent Basewitz arrived at the
       Philadelphia International Airport after receiving information
       from
       traveling on one-way tickets possibly purchased with cash.
       Agent Basewitz testified that the Interdiction Unit was provided
       with a general description of the individuals, which included
       information based on their clothing, physical makeup, and age.

       While at Philadelphia International Airport, Agent Basewitz
       received information from DEA Special Agent Eric Hill that he had
       observed defendant deplane and that a female who was later
       identified by the name of Vargas was following him. Defendant
       was also observed walking ahead of Ms. Vargas while glancing
       back and conversing. Once inside the terminal, Agent Basewitz,
       based on information received by Special Agent Hill observed the
       defendant and Vargas. After observing defendant take a piece of
       luggage off of the carousel, the agent began to follow both
       defendant and Ms. Vargas as they walked toward the direction of
       the airport exit. At this point, Special Agent Brian Daurity then
       approached Ms. Vargas while Agent Basewitz approached
       defendant. The defendant and Ms. Vargas were approximately
       15 or 20 feet apart at this time. Agent Basewitz testified that
       upon approaching defendant, he displayed his paper credentials,
       identified himself as a police officer, and asked defendant if he
       could briefly speak with him. At the time that the conversation
       took place defendant was not in handcuffs.

       While Agent Basewitz stopped the defendant, Trooper Moreno
       was acting as an interpreter for Special Agent Brain Daurity who
       was engaged in an encounter with Ms. Vargas. While Agent
____________________________________________


2




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        Basewitz was speaking with defendant he observed officers
        conduct a search of the bag that Ms. Vargas had claimed, which
        revealed a kilo of cocaine that had been removed from a Lite
        Brite toy. Trooper Moreno then came to where Agent Basewitz
        had stopped defendant in order to aid the agent in conducting a
        translation interview in Spanish. He identified himself as a law
        enforcement officer and displayed his task force credentials for
        defendant.

        When questioned about Ms. Vargas and why he was in
        Philadelphia, defendant replied that he had just met Ms. Vargas
        that day at the baggage claim area and that he was in
        Philadelphia to visit his aunt and uncle. [sic3] Defendant also
        stated that he had packed his own luggage, that nobody had
        solicited him to carry anything, and that the items in his bag
        belonged to him. During the course of the translation interview
        defendant was asked for permission to search his bag and his

        Defendant was placed in handcuffs after the discovery of the
                                          [4]



Trial Court Opinion, 7/03/2013, at 2-3 (citations to record omitted).

        Based upon the preceding information, the trial court determined that

Garcia had been subject to an investigative detention that was unsupported

by a reasonable suspicion of any criminal activity and accordingly, the

____________________________________________


3
    The notes of testimony contain no reference to an uncle.
4
  Here, the trial court cites to pages 36 and 72 of the notes of testimony.
However, neither page supports this statement. Our review of the certified
record shows that page 36 contains no reference to handcuffs or Ms. Vargas.
Testimony by Trooper Moreno on page 72 indicates only that Garcia was not
in handcuffs as he was being questioned. Agent Basewitz testified he did not
handcuff Garcia until he found the cocaine on him. See N.T. Hearing,
11/26/2012, at 33. Because the cocaine was found on Garcia after it was
                                                                         not




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J-A09024-14


evidence subsequently obtained was fruit of the poisoned tree.     However,

the Commonwealth argues Garcia was subjected only to a mere encounter.

        Our courts have long recognized three levels of interaction
        that occur between the police and citizens that are
        relevant to the analysis of whether a particular search or
        seizure conforms to the requirements of U.S. CONST.
        amend. IV and PA. CONST. art I, § 8.


        information) which need not be supported by any level of
        suspicion, but carries no official compulsion to stop or

        supported by reasonable suspicion; it subjects a suspect to
        a stop and period of detention, but does not involve such
        coercive conditions as to constitute the functional

        detention

     Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa. Super.
     2000) (quoting Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d
     1043, 1047 (1995) (citations and footnotes omitted)).

        [I]n assessing the lawfulness of citizen/police encounters,
        a central, threshold issue is whether or not the citizen-
        subject has been seized. Instances of police questioning
        involving no seizure or detentive aspect (mere or
        consensual encounters) need not be supported by any
        level of suspicion in order to maintain validity. Valid
        citizen/police interactions which constitute seizures
        generally fall within two categories, distinguished
        according to the degree of restraint upon a citizen's
        liberty: the investigative detention or Terry [v. Ohio, 392
        U.S. 1 (1968)] stop, which subjects an individual to a stop
        and a period of detention but is not so coercive as to
        constitute the functional equivalent of an arrest; and a
        custodial detention or arrest, the more restrictive form of
        permissible encounters. To maintain constitutional validity,
        an investigative detention must be supported by a
        reasonable and articulable suspicion that the person seized
        is engaged in criminal activity and may continue only so
        long as is necessary to confirm or dispel such suspicion;
        whereas, a custodial detention is legal only if based on

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J-A09024-14


            probable cause. To guide the crucial inquiry as to whether
            or not a seizure has been effected, the United States
            Supreme Court has devised an objective test entailing a
            determination of whether, in view of all surrounding
            circumstances, a reasonable person would have believed
            that he was free to leave. In evaluating the circumstances,
            the focus is directed toward whether, by means of physical
            force or show of authority, the citizen-subject's movement
            has in some way been restrained. In making this
            determination, courts must apply the totality-of-the-
            circumstances approach, with no single factor dictating the
            ultimate conclusion as to whether a seizure has occurred.

            Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884,
            889-90 (2000)(internal citations and footnotes omitted).

      Commonwealth v. Lyles, 54 A.3d 76, 79-80 (Pa.Super. 2012)

Commonwealth v. Williams, 73 A.3d 609, 613-14 (Pa.Super. 2013),

appeal denied, 87 A.3d 320 (Pa. 2014).



analysis.    In determining Garcia was subject to an investigative detention,

the trial court stated, in toto, in its Pa.R.A.P. 1925(a) opinion:

            In the case at hand, there clearly was an investigative
      detention. To determine whether or not a seizure has taken
      place for the purposes of an investigative detention, the United

      determination of whether, in view of all surrounding
      circumstances, a reasonable person would have believed that he
                          Com. v. Strickler, 757 A.2d 884, 889 (Pa.
      2000). When evaluating the circumstances, the primary focus is
      on whether by means of physical force or show of authority, the
                                                       Id. The agent
      in this case observed the defendant at the baggage claim area
      and subsequently stopped him before he exited the airport.
      While stopped, [the] defendant was subjected to a translation
      interview with the help of a Spanish speaking trooper that was
      composed of roughly 10 to 15 questions, as well as a search of
      both his person and his baggage. Additionally, both the agent

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J-A09024-14


      and the trooper were standing in front of the defendant at a
      distance of ap
      person would not have believed that he was free to leave.
      Moreover, although [the] defendant was not physically
      restrained at the time, there was undoubtedly a show of
      authority by both officers who displayed their law enforcement
      credentials when defendant was stopped.       As a reasonable
      person, defendant did not feel free to leave under the
      circumstances, and the agents had in fact engaged him in an
      investigative detention.

Trial Court Opinion, 7/03/2013, at 5-6.    Based upon our review of the

certified record, we conclude the trial court erred as a matter of law in

classifying the encounter with Garcia as an investigative detention.



three factors.   First, the police talked to Garcia.    Second, they identified

themselves as police. Third, they stood in front of Garcia. These factors do

not lead to the conclusion that Garcia was involuntarily detained.      Rather,

they are the definition of a mere encounter.

      The police need no level of suspicion to initiate a mere encounter. See

Williams, supra.      Therefore, Agent Basewitz was allowed to approach

Garcia and ask him if he would answer a few questions. Accordingly, talking

to Garcia does not lead to the conclusion Garcia was inappropriately

stopped.

      The police identified themselves by showing their credentials.      While

the trial court classifies this action as a show of authority that led Garcia to

                                                       lf as a law enforcement

officer, here by showing an ID card, would seem to be part and parcel of

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asking the person if he or she would answer a few questions.           For the

conversation to be voluntary, the citizen in question should be aware he or

she is talking to law enforcement personnel.5      Therefore, the police must

identify themselves. The trial court puts forth no rationale, nor do we see



equates to an improper show of authority.

       Finally, the police officers, Agent Basewitz and the translator, Trooper

Moreno, stood in front of Garcia. However, as the trial court found, Garcia

was not physically restrained and there is no indication that they barred

Garcia or that he could not have simply walked around the men, had he

been so inclined.      Additionally, Agent Basewitz and Trooper Moreno were

talking to Garcia. The most logical place for them to be standing would be in

front of Garcia.

       Viewing the evidence presented at the hearing in the light most

favorable to Garcia, as verdict winner, we nonetheless believe the instant

matter is very similar to the situation presented in Commonwealth v.

Dowds, 761, A.2d 1125 (Pa. 2000), in which our Supreme Court determined

the defendant was subjected to a mere encounter.



____________________________________________


5
  The voluntary answering of questions is part of the mere encounter.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005).




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J-A09024-14


       The officers who approached Dowds were in plain clothes, did
       not display weapons, identified themselves, explained their
       duties at the airport, and merely requested ticket and
       identification information, which Dowds agreed to provide.
       Dowds was not confronted by a large number of police officers or
       interrogated regarding narcotics possession, and as she testified,


Commonwealth v. Dowds, 761 A.2d 1125, 1130 (Pa. 2000).

Instantly, the trial court made no specific findings regarding many of the

factors cited in Dowds. We are not a fact-finding court, but our review of

the certified record shows uncontradicted testimony that no weapons were

displayed.    The record infers Agent Basewitz and Trooper Moreno were in

plain clothes.    Testimony of the two men indicates the conversation with

Garcia was civil in tone.       Garcia was not surrounded by officers; the only

reason Trooper Moreno was present was to allow Garcia to converse in

Spanish. There is no testimony that Garcia was asked about drugs.

       In light of the above, we conclude that the trial court committed an

error of law in classifying the contact between Garcia, Agent Basewitz and

Trooper Moreno as an investigative detention unsupported by a reasonable

suspicion of criminal activity.6 Accordingly, the trial court erred in granting



search.
____________________________________________


6
  Although we have determined the contact with Garcia was a mere
encounter, it is apparent that, at the latest, the police had reasonable

possession.



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     Order granting suppression of evidence is reversed.       This matter is

remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2014




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