J-S29022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDREW J. SWEENEY

                            Appellant                No. 1353 WDA 2014


             Appeal from the Judgment of Sentence June 12, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016492-2013


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                        FILED: JUNE 05, 2015

        Appellant, Andrew J. Sweeney, appeals from the June 12, 2014

judgment of sentence of 18 months’ probation imposed after the trial court

found Appellant guilty of two counts of possession of a controlled

substance.1 After careful review, we affirm.

        The trial court summarized the factual background of this case in the

following manner.

                     […] Officer [James] Goss of the City of
              McKeesport Police Department was working the night
              shift on the evening of November 16, 2013. While
              on duty, he received a call from Allegheny County
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
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              Dispatch for service at Beemer’s [B]ar for suspected
              narcotics activity. Upon arrival at Beemer’s Bar, the
              police officers spoke to the bar manager who made a
              statement      regarding   her   observations  about
              [Appellant]. The bar manager was the known and
              identified caller to 911. Thereafter, she pointed to
              [Appellant] and indicated “he’s the one.” Officer
              Goss and his partner then approached [Appellant]
              and asked him to step outside so they could speak to
              him.     Officer Goss testified that he declined to
              question [Appellant] inside the bar due to officer
              safety concerns.

                    Once Officer Goss, his partner, and [Appellant]
              were in the foyer of the bar, he explained why they
              were there and asked [Appellant] for permission to
              search his person. [Appellant] gave his consent, and
              Officer Goss found cocaine in his right front watch
              pocket.   [Appellant] was thereafter placed under
              arrest.

                    At trial, the parties stipulated to the crime lab
              results, which were positive for heroin and cocaine.
              The parties also stipulated to the Affidavit of
              Probable Cause[.]

Trial Court Opinion, 12/23/14, at 1-2 (citations omitted).2

        On January 16, 2014, the Commonwealth filed an information charging

Appellant with the aforementioned offenses as well as possession of drug

paraphernalia.3      On April 3, 2014, Appellant filed a motion to suppress

evidence on the basis that Officer Goss lacked reasonable suspicion to

____________________________________________


2
  The trial court’s Rule 1925(a) opinion does not contain pagination. For
ease of reference, we have assigned each page a corresponding page
number.
3
    35 P.S. § 780-113(a)(32).



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search or seize Appellant. Appellant’s Motion to Suppress, 4/3/14, at 3-4.4

The trial court held a hearing on Appellant’s motion on May 29, 2014, and on

June 10, 2014, the trial court denied said motion.           On June 12, 2014,

Appellant proceeded to a stipulated bench trial, and the trial court found

Appellant guilty of two counts of possession of a controlled substance. N.T.,

6/12/14, at 15. The trial court found Appellant not guilty of possession of

drug paraphernalia.        Id. at 16.     At that time, the trial court sentenced

Appellant to 18 months’ probation on the first count, possession of heroin,

and imposed no further penalty on count two, possession of cocaine. Id. at

19. No post-sentence motions were filed.

       On July 9, 2014, Appellant filed a pro se notice of appeal.5 On August

11, 2014, the trial court appointed the Public Defender’s Office to represent




____________________________________________


4
  Appellant’s motion to suppress does not contain pagination.           We have
assigned corresponding page numbers for ease of reference.
5
  Appellant’s notice of appeal is docketed on July 14, 2014. However,
Appellant was incarcerated during this time, and the certified record contains
a copy of the envelope Appellant used for mailing his notice of appeal, which
shows a postmark of July 9, 2014. Under the prisoner mailbox rule, “a pro
se prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d 715 (Pa. 2012).
As such, we treat July 9, 2014 as the filing date.




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Appellant, and appointed counsel filed an amended notice of appeal on

August 20, 2014.6

       On appeal, Appellant raises the following issues for our review.

              I.   [Whether] the trial court erred in denying
              [Appellant’s] motion to suppress where police lacked
              reasonable suspicion to believe [Appellant] was
              engaged in criminal conduct at the time they stopped
              him[?]

              [II.] [Whether] [Appellant’s] consent to the police
              search of his person was not voluntary since his
              consent was provided in response to the coercive
              and illegal police conduct[?]

Appellant’s Brief at 4.7

       When reviewing a challenge to a trial court’s denial of a suppression

motion, we adhere to the following well-established standard of review.

              We 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. 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.          An
              appellate court, of course, is not bound by the
              suppression court’s conclusions of law.



____________________________________________


6
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
7
  Appellant’s brief enumerates one issue; however, he raises two distinct
questions. For ease of discussion and review, we have amended his issues
to reflect the two arguments.



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Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

Further, when evaluating a ruling on a pre-trial suppression motion, our

review is limited to the evidence presented at the suppression hearing.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014).

      Appellant first argues that “[t]he police violated [his] constitutional

rights to be free from unreasonable searches and seizures when they

stopped him without the requisite reasonable suspicion to believe he was

engaged in criminal activity.”      Appellant’s Brief at 10.    Appellant asserts,

“the seizure was unconstitutional as police did not independently observe

any actions indicative of criminal activity[,]” and “the only information police

had before they seized [Appellant] was the information from the unidentified

bartender that [Appellant] possessed illegal drugs.” Id. at 10, 16.             The

Commonwealth counters Appellant’s argument by averring, “[u]nder the

totality   of    the   circumstances,   police   had   reasonable   suspicion   that

[A]ppellant was engaging in criminal activity and an investigative detention

of [A]ppellant was justified.” Commonwealth’s Brief at 5.

      An encounter between a police officer and a citizen falls into one of

three categories.

                The first of these is a “mere encounter” (or request
                for information) which need not be supported by any
                level of suspicion, but carries no official compulsion
                to stop or respond. The second, an “investigative
                detention” must be supported by a reasonable
                suspicion; it subjects a suspect to a stop and a
                period of detention, but does not involve such
                coercive conditions as to constitute the functional

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            equivalent of an arrest.      Finally, an arrest or
            “custodial detention” must be supported by probable
            cause.

Commonwealth v. Fleet, --- A.3d ---, 2015 WL 1845917, at *4 (Pa.

Super. 2015).     We agree with Appellant and Commonwealth that the

necessary level of suspicion required to support the encounter in this case is

reasonable suspicion. Appellant’s Brief at 10; Commonwealth’s Brief at 5;

see Ranson, supra at 77 (observing a “stop” occurs when police officers

command a citizen to stop). Therefore, we proceed to our determination as

to the constitutionality of the detention.

      In assessing whether an investigative detention is constitutional, the

following standard informs our decision.

            A police officer may detain an individual in order to
            conduct an investigation if that officer reasonably
            suspects that the individual is engaging in criminal
            conduct. This standard, less stringent than probable
            cause, is commonly known as reasonable suspicion.
            In order to determine whether the police officer had
            reasonable     suspicion,    the     totality of  the
            circumstances must be considered. In making this
            determination, we must give due weight to the
            specific reasonable inferences the police officer is
            entitled to draw from the facts in light of his
            experience. Also, the totality of the circumstances
            test does not limit our inquiry to an examination of
            only those facts that clearly indicate criminal
            conduct. Rather, even a combination of innocent
            facts, when taken together, may warrant further
            investigation by the police officer.

Ranson, supra, citing Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.

Super. 2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010).


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Our   Supreme      Court    has   provided    the    following     guidance    regarding

information provided to police.

            An anonymous tip, corroborated by independent
            police investigation, may exhibit sufficient indicia of
            reliability to supply reasonable suspicion for an
            investigatory stop. However, we have recognized a
            known informant’s tip may carry sufficient “indicia of
            reliability” to justify an investigative detention
            despite the fact that it may prove insufficient to
            support an arrest or search warrant.

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). The Court also

observed, “[i]f the information from an anonymous informant is false, no

action   against   the     informant   is    possible;     however,   providing    false

information will have consequences for a known informant … distinguishing

the presumptive quality of information, and tipping the scales toward

credibility, not away from it.” Id. at 478.

      Officer Goss testified that, at the time of the suppression hearing, he

was employed by the City of McKeesport Police Department as a law

enforcement    official    for   approximately      nine   years   and   had    received

additional training in drug identification and attended numerous firearms and

other classes. N.T., 5/29/14, at 5. He testified at the suppression hearing

as to his actions responding to the 911 call as follows.

            [The Commonwealth]:

            Q. Officer Goss, what did you notice when you went
            into [Beemer’s B]ar?

            [Officer Goss]:


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J-S29022-15


            A. The bar manager, who made the 911 call, pointed
            to [Appellant].

            Q. Okay. And based off the information you had on
            the 911 call, did the description fit anybody you saw
            in the bar?

            A. Yes.

                                      …

            [The trial court]:

                 All right. Let the record reflect that Officer
            James Goss has identified [Appellant].

            [The Commonwealth]:

            Q. Did you have a conversation with the bar
            manager when you walked in?

            A. A brief one, yes. As I walked -- myself and
            Officer Matthews walked in through the foyer into
            the main entrance of the bar. The bar manager
            observed us because we were in full uniform and
            pointed to [Appellant], said, “[h]e’s the one.”

Id. at 8-9. He later testified on cross-examination that he entered Beemer’s

Bar “within ten minutes” from when the call was dispatched. Id. at 11.

      Under the totality of the circumstances, in light of Officer Goss’

training and experience, we conclude there was reasonable suspicion to

believe Appellant was engaged in criminal conduct.     See Ranson, supra.

Officer Goss responded to the 911 dispatch of illegal drug activity within ten

minutes of its receipt, he spoke with the bar manager who made the call,

Appellant fit the description of that given on the 911 call, and the bar

manager positively identified Appellant as the subject of her 911 call.

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J-S29022-15


Appellant argues that the “information provided by the bartender in this case

must be regarded as an anonymous tip.” Appellant’s Brief at 16. However,

upon response to the 911 call, Officer Goss identified the informant as the

bar manager, and she reaffirmed the information in her call by identifying

Appellant. Therefore, the presumptive quality of the information is credible,

and we conclude it was sufficiently reliable to support an investigative

detention. See Brown, supra at 477-478; see also Commonwealth v.

Williams, 980 A.2d 667, 671-672 (Pa. Super. 2009) (concluding that a tip

made to a police officer in person where officer had “an opportunity to

observe the witness’ demeanor and assess his credibility in light of his past

experience with investigating crimes” affords the tip more weight than “a

mere anonymous phone call[]”), appeal denied, 990 A.2d 730 (Pa. 2010);

Ranson, supra at 78-79 (distinguishing cases where general and vague

anonymous tips were deemed unconstitutional to support reasonable

suspicion where veteran officer “had an opportunity to assess: (1) the

demeanor of the tipster; (2) the basis of the tipster’s knowledge; and, (3)

the   tipster’s   present   ability   to   perceive   Appellant[]”).   Accordingly,

Appellant’s argument is meritless.

      Appellant also argues his consent to search his person was not

voluntary. Appellant’s Brief at 18-19. We conclude this argument is waived.

At the suppression hearing, Officer Goss testified that he “asked permission

to search [Appellant,]” and “[Appellant] gave me permission.”                 N.T.,


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J-S29022-15


5/29/14, at 11.   At no point during the suppression hearing did Appellant

challenge the voluntariness of his consent to search or argue it was coerced.

See generally id. at 3-24.      Therefore, the challenge is waived.     See

Pa.R.A.P. 302 (issues not raised in the lower court are waived and cannot be

raised for the first time on appeal). Further, Appellant never identified the

voluntariness of his consent to the search in his Rule 1925(b) statement as a

claim of error; as such, any such challenge is waived on appeal.         See

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (holding Rule 1925(b)

is a bright-line rule, and any issue not included in the 1925(b) statement is

waived on appeal); accord Pa.R.A.P. 1925(b)(4)(vii).

     Based on the foregoing, we conclude Appellant is not entitled to relief,

and the trial court properly denied his motion to suppress. Accordingly, we

affirm the June 12, 2014 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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