J-S40025-14


NON-PRECEDENTIAL DECISION           SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

STEVEN DAYSEAN MCINTOSH,

                        Appellant                 No. 2156 MDA 2013


    Appeal from the Judgment of Sentence Entered November 20, 2013
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0002301-2012


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

MEMORANDUM BY BENDER, P.J.E.:                   FILED AUGUST 26, 2014

     Appellant, Steven Daysean McIntosh, appeals from the judgment of

sentence of thirty days probation and a $100 fine after he was found guilty

of possession of a small amount of marijuana.    Appellant claims the trial

court erred when it denied his motion to suppress the seized contraband.

After careful review, we reverse the order denying suppression and reverse

the judgment of sentence.

     A suppression hearing held on March 8, 2013, revealed the following

facts: Officer Travis Carbaugh, employed with the Waynesboro Police

Department for eight and a half years, testified that on December 3, 2012,

he received a dispatch indicating that multiple shots had been fired into a

residence at 115 West Second Street in Waynesboro.      N.T., 3/8/13, at 4.

While responding to that call, he received a second dispatch regarding
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additional shots having been fired at 132 West North Street, two blocks

away from the location of the first shots. Id. Officer Carbaugh arrived at

the West North Street address, where he found four or five individuals

standing together on the sidewalk.    Id.   One of those individuals, Teresa

Dunn (Dunn), indicated that she had been walking her dog near 132 West

North Street when she heard multiple gunshots.      Id. at 9-10.   She then

ob

Id.

                                                             Id. Dunn was

the only person among the group on the sidewalk who witnessed anything.

Id. at 12.

      Dunn did not observe any of the black males firing a weapon, nor is

there any indication that she observed any of them with a firearm.



after Dunn heard the shots and saw the flash of a gunshot. Id. at 11. After

retrieving this information from Dunn, Officer Carbaugh searched the area



Id. at 15.    After this unsuccessful search, Officer Carbaugh returned to

Dunn, who then told the officer that the black males she had observed

                                                         Id. at 16.   Officer

Carbaugh moved to that location, where he immediately observed three

black males, Appellant and two others. Id. at 18. Officer Carbaugh drew

his weapon and ordered them to the ground. Id.

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                                                                         Id. at

19.   Officer Carbaugh then waited for backup.      Id.    A few minutes later,

Officer Dewitt of the Washington Township Police arrived at the scene. Id.

Officer Dewitt handcuffed Appellant and one of his companions as the two

remained on the ground on their stomachs.        Id. at 20.   During this time,



Id. Soon thereafter, two adult probation officers arrived and cuffed the third

individual. Id. After Appellant was cuffed, Officer Dewitt patted him down

an

sweat pants. Id.



        Id.

       Id.

clear plastic baggie containing marijuana. Id.

      The Commonwealth charged Appellant with possession of a small

amount of marijuana, 35 P.S. § 780-113(a)(31).            On January 10, 2013,

Appellant filed a motion to suppress the marijuana as the product of an

illegal seizure. Following the March 8, 2013 suppression hearing, the parties

were ordered to file briefs. On May 2, 2013, the trial court issued an opinion



convicted following a stipulated bench trial in which the court incorporated

the testimony from the March 8, 2013 suppression hearing. Appellant was

sentenced on Nove

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     Appellant filed a timely notice of appeal on December 2, 2013. He also



directing him to file a Pa.R.A.P. 1925(b) concise statement. Appellant now

presents the following question for our review:
     Whether the court erred by not suppressing the evidence of a
     small amount of marijuana and paraphernalia when [A]ppellant
     was unlawfully arrested and illegally searched?

              ef at 7.

     We are mindful of the following standards that apply in our review of




     court's denial of a suppression motion is whether the factual
     findings are supported by the record and whether the legal
     conclusions drawn from those facts are correct.... [W]e must
     consider only the evidence of the prosecution and so much of the
     evidence of the defense as remains uncontradicted when read in
                                                  Commonwealth v.
     Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007), cert.
     denied, 552 U.S. 894, 128 S.Ct. 211, 169 L.Ed.2d 158 (2007).

     reverse only if the legal conclusions drawn therefrom are in
            Id.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009).

     It is well settled that there are three distinct levels of interaction
     between law enforcement and the general public. The first level
     is the mere encounter, which need not be supported by any level
     of suspicion, but it carries no official compulsion to stop or
     respond. The second level is the investigative detention, which
     must be supported by reasonable suspicion; it subjects a suspect
     to a stop and period of detention, but it does not involve such
     coercive conditions as to constitute the functional equivalent of
     arrest. Finally, the third level is an arrest or custodial detention,
     which must be supported by probable cause.




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Commonwealth v. Daniels, 999 A.2d 590, 596-97 (Pa. Super. 2010)

(internal citations omitted).

            The key difference between an investigative detention and

      conditions as to constitute the functional equivalent of an
                                                r with the police is

      consideration given to the reasonable impression conveyed to
      the person interrogated rather than the strictly subjective view



Commonwealth v. Pakacki, 901 A.2d 983, 987 (Pa. 2006) (internal

citations omitted).

      The Supreme Court of Pennsylvania has elaborated on the criteria for

determining whether a functional equivalent of an arrest, i.e., a custodial

detention, has occurred, as follows:

      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, 757 A.2d 884, 889-90 (Pa. 2000) (internal

citations omitted).

      Thus, we begin our analysis by considering whether Appellant was

subjected to an investigative or custodial detention at the time he was



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                                                  on the actions of Officer

Carbaugh at the scene, [Appellant] was under the control of the police and

therefore was in custody at the time he was subjected to an investigative



conclusion on the fact that:

       Officer Carbaugh drew his firearm on the three individuals,
      including [Appellant], and instructed them to get down on the
      ground. He kept them in this position for approximately three to
      five minutes until Officer Dewitt arrived at the scene. At that
      time, [Appellant] was handcuffed and patted down. Based upon
      these actions, it is reasonable that [Appellant] would believe he
      was going to be taken into custody and was under the control of
                                                  keeping the group of
      individuals, including [Appellant], face down on the ground for
      several minutes at gunpoint is coercive enough to be the
      equivalent of an arrest.

Id.



subjected to the functional equivalent of an arrest because a reasonable

person would not feel free to leave in the circumstances presented by this




pat down of Appellant was supported by reasonable suspicion.      This latter

                                                                      baugh




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arrest.   See Commonwealth v. Trenge, 451 A.2d 701, 710 (Pa. Super.



warrant, search a person validly arrested, and the constitutionality of a

search incident to a valid arrest does not depend upon whether there is any

indication that the person arrested possesses weapons or evidence as the




cause, there is no need to consider the legality of the subsequent pat down.

See id.

by probable cause, then the marijuana discovered during the subsequent pat

                                                             as the result of



Commonwealth v. Modich, 334 A.2d 717, 719 (Pa. Super. 1975).              In



we are mindful of the following:


      which are within the knowledge of the officer at the time of the
      arrest, and of which he has reasonably trustworthy information,
      are sufficient to warrant a man of reasonable caution in the

      Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988,
      990 (1991). The question we ask is not whether the officer's
                                                       Texas v.
      Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502

                                         Illinois v. Gates, 462 U.S.
      213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation
      omitted) (emphasis supplied). In determining whether probable

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       cause exists, we apply a totality of the circumstances test.
       Commonwealth v. Clark, 558 Pa. 157, 735 A.2d 1248, 1252
       (1999) (relying on Gates, supra).

Thompson, 985 A.2d at 931.

       Officer Carbaugh did not have probable cause to arrest Appellant and



specificity upon which Officer Carbaugh could base a reasonable belief that

the men he stopped were the same men Dunn had observed emerging from

the alley. Dunn did not describe the facial features, clothing, age, size or

any other identifying characteristic of the men she initially observed.   The

only identifying characteristics of note were the fact that the men were black

and that there were four of them.

       However, the men stopped by Officer Carbaugh, including Appellant,



a particularly individualized description in the context of this case.1

Furthermore, Officer Carbaugh did not stop four black men; he stopped

three black men. Moreover, Officer Carbaugh did not find Appellant and his

companions until approximately 15 minutes after the shots were fired.

Carbaugh indicated that it took him several minutes to respond to the

dispatch, that he then spoke with Dunn for several minutes, and that he
____________________________________________


1
    Defense counsel asked Officer Carbaugh


         Id.




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searched for 5-10 minutes before returning to Dunn for more information.

Thus, a considerable amount of time had passed from when the shots were

fired until Appellant was stopped.   That was certainly enough time for the

shooters to have moved more than a block away, which is where Appellant

was found.    The only piece of information that linked Appellant and his

companions to the shooting that occurred in the alley was the fact that they

shared racial characteristics with the men observed by Dunn right after the

shooting.

      Additionally, Dunn did not directly witness the shooting. The men she

observed emerging from the alley were not seen firing a weapon, carrying a

weapon, or fleeing from the scene of the shooting. According to Dunn, the

four black males casually walked out of the alley just seconds after she

heard the shots.   N.T., 3/8/13, at 9-10.   When Officer Carbaugh did stop

Appellant and his two companions, he did not observe any suspicious

behavior on their part.

      Given the totality of these circumstances, it is clear that Officer

Carbaugh lacked probable cause to arrest Appellant. Specifically, he lacked

reasonably trustworthy information that Appellant and his companions were

the same individuals observed by Dunn emerging from the alley after the

gunshots were heard.      Furthermore, Officer Carbaugh lacked reasonably

trustworthy information that the men observed by Dunn were responsible for

the shooting. Accordingly




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seized marijuana, which was the fruit of that illegal arrest.

                                                       reversed. Judgment of

sentence reversed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




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