J-S09043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JOSE LUIS GONZALES                         :
                                               :
                      Appellant                :       No. 1119 MDA 2017

              Appeal from the Judgment of Sentence May 4, 2017
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003943-2016


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 29, 2018

        Appellant, Jose Luis Gonzales, appeals from the judgment of sentence

entered in the Lancaster County Court of Common Pleas, following his bench

trial convictions for possession with intent to deliver (“PWID”), possession of

drug paraphernalia, receiving stolen property, firearms not to be carried

without a license, and false identification to a law enforcement officer. 1 We

affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts of this case.      Therefore, we have no reason to restate them.        The

relevant procedural history of this case is as follows.       On September 21,


____________________________________________


1 35 P.S. §§ 780-113(a)(30), (32); 18 Pa.C.S.A. §§ 3925(a), 6106(a)(1),
4914(a), respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09043-18


2016, Appellant filed a suppression motion.       The court held a two-day

suppression hearing on February 21, 2017, and February 27, 2017.        After

the suppression hearing concluded, the court denied Appellant’s suppression

motion; and the case proceeded to a stipulated bench trial.        The court

convicted Appellant of PWID, possession of drug paraphernalia, receiving

stolen property, firearms not to be carried without a license, and false

identification to a law enforcement officer. The court sentenced Appellant to

an aggregate term of six (6) to sixteen (16) years’ imprisonment on May 4,

2017. On May 15, 2017, Appellant timely filed a post-sentence motion; the

court denied relief on June 15, 2017.      Appellant timely filed a notice of

appeal on July 17, 2017. That same day, the court ordered Appellant to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant timely complied on August 7, 2017.

      Appellant raises the following issue for our review:

         DID THE TRIAL COURT ERR IN DENYING [APPELLANT’S]
         MOTION TO SUPPRESS WHERE THE POLICE OFFICERS
         LACKED REASONABLE SUSPICION THAT CRIMINAL
         ACTIVITY WAS AFOOT AND, THEREFORE, DID NOT HAVE
         AN ADEQUATE BASIS TO SUBJECT [APPELLANT] TO AN
         INVESTIGATORY DETENTION WHICH WAS IN VIOLATION
         OF THE FOURTH AND FOURTEENTH AMENDMENTS OF THE
         UNITED STATES’ CONSTITUTION AND ARTICLE I, SECTION
         8 OF THE PENNSYLVANIA CONSTITUTION?

(Appellant’s Brief at 5).

      Our standard of review of the denial of a motion to suppress evidence

is as follows:


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J-S09043-18


         [An appellate court’s] standard of review in addressing a
         challenge to the denial of a suppression motion is limited
         to determining whether the suppression court’s factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. Because
         the Commonwealth prevailed before the suppression court,
         we may consider only the evidence of the Commonwealth
         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 suppression court’s factual findings are
         supported by the record, [the appellate court is] bound by
         [those] findings and may reverse only if the court’s legal
         conclusions are erroneous.       Where…the appeal of the
         determination of the suppression court turns on allegations
         of legal error, the suppression court’s legal conclusions are
         not binding on [the] appellate court, whose duty it is to
         determine if the suppression court properly applied the law
         to the facts. Thus, the conclusions of law of the [trial court
         are] subject to plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),

appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jeffery D.

Wright, we conclude Appellant’s issue merits no relief.         The trial court

opinion comprehensively discusses and properly disposes of the question

presented.    (See Trial Court Opinion, filed October 27, 2017, at 6-9)

(finding: under totality of circumstances, police had sufficient information to

form reasonable suspicion and conduct valid investigatory detention of

Appellant; for months, police investigated Appellant on suspicion of selling

heroin and guns; Detective Cavanaugh tracked Appellant’s drug and gun

activity as well as his location; police knew after they executed search



                                     -3-
J-S09043-18


warrant on Howard Avenue address, Appellant would likely try to stash

drugs and guns in his possession; when police arrived at storage facility,

they immediately recognized Appellant as well as his vehicle; Appellant’s

departure from East End Avenue address and arrival at storage facility with

large tote bag coincided perfectly with execution of search warrant on

Howard Avenue location; based on Officer Hagy’s training and experience,

he knew drug and gun sellers often use storage lockers as stash houses and

believed Appellant’s red tote contained illegal items; investigatory detention

of Appellant was reasonable under these circumstances; Officer Hagy

instructed Appellant to lower tote bag and slowly back up for officer safety;

in abundance of caution, Officer Hagy handcuffed Appellant while Officer

called for backup; Officer Hagy’s actions were reasonable for officer safety;

Officer Hagy told Appellant he was being detained and asked him to sit on

curb; police restricted Appellant’s liberty for limited duration and for

purposes of officer safety during investigative detention; police had probable

cause to arrest Appellant for false identification after he gave incorrect

name). Accordingly, we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.




                                    -4-
J-S09043-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/29/2018




                          -5-
                                                                                                                    - ,..... - ..

'•   .
                                                                                              Circulated 03/19/2018 01:56 PM



           IN THE COUF{TOF COMMO� PLEAS OF LANCASTER COUNTY, PENNSYLVANIA·
            .  .    .                CRIMINAL


          _COMMONWEALTH OF P�"i--JNSYLVANIA
                                                                                      C--
                 vs ..                                                       No. 3943-2016


          JOSE LUIS GONZALES.



                                                OPINION

         . ·av: WRIGHT, J.                                                          October 1J_, 2017


                 This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of

         · Appellate Procedure. l.n his timely Statement of Errors [Statement]. Defendant Jose Luis

          Gonzales appeals
                    . .
                           from
                             .
                                the judgement
                                        .     of sentence imposed on May
                                                                      .� 4, 2017 following
                                                                                        .
                                                                                           a

          suppression hearing and stipulated bench trial held over the course of two days, ·

          February'21,,2017 and February 27, 2017.    ��(e   it;·1S�:5.Jr;t�MMt 18/7/2017).   Defendant

          argues that his Motion to Suppress was imprope'rly denied and he raises the limited

          issue that theponce lacked reasonable suspicion of criminal activity to subject




                                                                                                    ("')
                                                                                                    C)
                                              .BACKGROUND                                           c




          selling-heroin and flrearrns in the Lancaster area. (N.T. Suppression Hr'ng 2/27/17,

         . 3943'-2016 at 68). Detective Cavanauqh received reports from multiple informants that
>


    Jose Gonzales conducted his "business" from his house on 233 Howard Avenue in

    Lancaster City and that he had ties with the Latin Kings, a known Lancaster area street

    gang.   kL. at 68, 69.     After a period of surveillance demonstrating steady foot traffic in

    and out of Defendant's house, collecting various reports from informants, and making a

    successful controlled delivery of heroin from Defendant, Detective Cavanaugh obtained

    a warrant to search the Howard Avenue home in March 2016.                 !!t. at 69, 70. · However,
    on the afternoon in which he intended to execute the warrant, the house was completely

    ':quiet and there was no longer any foot traffic in and out of the house.           !!t. at 70.
    · Detective Cavanaugh determined that the occupants of the house had been tipped to

    the incoming raid and he chose not to serve the warrant on that day.               !!t.
            Between March .and July of 2016, Detective Cavanaugh continued to gather

     information relating to Jose Gonzales and determined that he went by the street name

     of "Coco."   kL. at 71.   Detective Cavanaugh also discovered that Defendant had moved

    to an address on East End Avenue in Lancaster City.              kL. at 70.   All reports from his

     confidential informants revealed that Defendant continued to sell heroin from the house

     on Howard Avenue even though he had relocated to the new home.                   19.:. at 71.
    Accordingly, Detective Cavanaugh planned to surveil the Defendant's address on East

     End Avenue on the day he served the search warrant on Howard Avenue in the event

    that Defendant tried to transfer a stash of drugs.         kL. at 74.
            Detective Cavanaugh obtained a new search warrant for the Howard Avenue

     house in July of 2016 based on the facts that were known to him in March of 2016 when

     he originally planned to execute the search warrant and the additional surveillance he

     conducted since that date.       !!t. at 73.   Prior to serving the July warrant, a briefing was



                                                          2
 arranged
       .  at East t.ampeterPolice. Department with the Lancaster County SERT team,

 the Drug Task Force, and some Lancaster City police officers. Id. at 73, 74. Detective

Cavan�ugh advised the team of the facts known to him, namely that Defendant was

·selling heroin, guns, and tt.lat he also had ties to the Latin Kings.   !st at 74. He also
 notified the team that Defendant was no longer living at Howard Avenue, but he still had
           '                     ,,     I



. ties to the residence.   ·kl Detective
                                      .
                                         Cavanaugh anticipated that
                                                                  . after the warrant was
 served at the Howard Avenue house, Defendant would likely try to move any drugs he
                      .                       .
· had in his possession
                  .     from the
                             .   East End . Avenue house to another location.       kl     The

. Officers that we�e assigned
                      .    .  to track
                                 .
                                       "the East End Avenue House were shown pictures of
                                                  .




 the Defendant" from social media and were told that Defendant operated a green Ford

 Explorer. (N.T. Suppression Hr'nq f/21/17, 3943-2016 at 9, 1.0).

        On July 14, 2016, the SERT team and the prug Task Force executed the search

 warrant on the Howard Avenue location. Officer Jason Hagy,. of Lancaster City Bureau

 of Police was specifically tasked with locating the Defendant's vehicle . .IQ.. Officer Hagy

 was accompanied in. his police vehicle by Detective Robert ':"Jhiteford.     kl ·at 11.   Both

 Detective Whiteford and Officer Hagy.were present at the general briefing at East

 Lampeter Township-Pollce Department on the day before, and were also specifically

 briefed on their assignment by Detective Cavanaugh. (N.T. Suppression Hr'ng 2/27/17

 at 74.) They were provided with several· photographs of the· Defendant as well as the

 license plate 'number of Defendant's green Ford Explorer. (N.T. Suppression Hr'ng

 2/21/17 at 9, 10).

       · Officer Hagy and Detective Whiteford set up in a parking lot that had a visual of

 the intersection of East End Avenue and Ann Street, close to the 400 block of East End



                                                      3
.. 'e
  p .



           Avenue where Defendant was living.         kl at     12. 'Officer Hagy did. not see the Defendant ..

           or his vehicle at that location at the time that the warrant on Howard Avenue was being

        · .: served:   -·llt ·while the search warrant wasbeinq executed, Detective Whiteford               began
                                      ..                .
          . receiving reports from the Lancaster City Safety Coalition about sightings of

           Defendant's vehicle. Id. Officer Hagy and Detective Whiteford were eventually directed

           to th_e intersection of Manor Street and· Campbell Avenue ·,n Lancaster City where they

           located a green Ford Explorer that they could identify as _the Defendant's based on the

           license plate and physlcal description they had been provided.              !s1 at   14. They spotted

           the vehicle as it was pulling into the driveway of a storage unit.          llt
                   After ide_ritify_ing the vehicle, Officer Hagy immediately recoqrnzed the Defendant
                                         ..
           fromthe various photographs he was shown by Detective Cavanaugh.                       kl at   16. The

           Defendant was holding a red tote·bag in one hand and inserting a key into the lock-of

           the storage unit with the other.    llt at 16. Officer Hagy exited       his vehicle and drew his

           weapon in a "safety circle", a police rnaneuverln _which the officer's gun is pulled into his.

           chest and facing downwards.        ill at 15.   Upon approach of the Defendant, Officer Hagy.

           observed anotherindividual in the Defendant's vehicle. Id. at 19. Not wanting to expose
                                                                                   .              ,,

           his back to the individual in the vehicle he maintained his position and asked.the

           Defendant to drop the bag and walk backwards towards him. -� at 18. After initial

           hesitation, Defendant complied.      llt   Once Defendant was near, Officer Hagy holstered
                                                           ,.

           his weapon and handcuffed him.         !s1 at.19.     Officer Hagy testified that based on his

           training and experience as· a police officer he chose to handcuff Defendant because

           there were only two officers there to handle two individuals and he had to ensure the

         · safety of Detective Whiteford and himself.           ·kl at 20.   Officer Hagy told the Defendant



                                                                4
f,   .




         that he was not under arrest but he was being detained. � Defendant was seated on

         the ground until backup arrived.          !st. at 21.
                                                                                            .,
                     Officer Jonathan Caple of the Lancaster City Bureau of, Police was subsequently

         . dispatched to assist Officer Hagy and Detective Whiteford with the suspects they had

         detained.      ill Upon arrival, Offjcer Caple was tasked with determining the identity of the
         defendant.       ill at 31. Officer Caple asked the Defendant his name and date of birth and
         then relayed the information given to him through Lancaster County radio so that the·
            '                         ·•   '   I                         ,             1°        '




          identity could be .verified.     ill at 33. The Defendant provided a name and birthdate
         which weredetermlned to be incorrect.              ·ill at 32. Defendant was then advised that he
         was under police investigation and that he had an obligation to provide Officer Caple
                ·•

         with accurate information. ·!. s;l. at 33. Defendant nevertheless provided
                                                                             .      Officer Caple
                                           '                     '



         with additional false names and .false dates of birth. :Id .. at 34. Officer Caple eventually

         got the correct information from-the Lancaster County radio and Defendant admitted

         that his name was indeed Jose Luis Gonzales with a date of birth of 3/27/1974.              kl At
         that time Defendant was under arrest for False Identification to a Law Enforcement

          officer.    kl at 52. A drug detection canine was then brought to the. scene and indicated
          a positive presence of narcotics inside of the red tote bag that Defendant had been

          carrying. 19.:, at 49. Police subsequently obtained a search warrant for the bag and

          found that it contained 556 individual baqs of heroin and a stolen 9mm handgun.             ill at ·
          49, 106. The Defendant did not challenge at the· suppression hearing or at trial, and

          does not challenge now, the sufficiency of the search warrant or any of the actions ..

          taken by the officers after the search warrant was executed.           kl at 6.




                                                                 5
c




                                               DISCUSSION.

           Defendant" asserts in his statement of errors that the police lacked reasonable
                                                        ,,   :·,



    suspicion of criminal a.ctivity to subject him to an investigatory detention and that any

    subsequent evidenceqathered by police should have been suppressed as fruit of an

    illegal stop and detention. (R..i.1e: fqQS lb) ��l"\e,\t1 Bt1 /17). Contained within that issue is

    whether .the h_andcuffing of the defendant by Officer Hagy escalated the investigatory
             .      .                              .
    detention into a custodial arrest.

           An investigatory detention subjects a person to a "stop and period of detention in

    order for the law enforcement officer to obtain more· information." Com. v. Rosas, 875

    A.2d 341, 347 (2005). For the police to subject an individual to an investigatory

     detention they must have atleast reasonable suspicion. Com. v. Ellis. 662 A.2d 1043,
                                                                   '
    · 1047 (Pa. 1'995). In determining whether reasonable suspicion exists, the Court must

     assess the totality of the circumstances and determine whether the facts that were

     known to the police officers at the time of the investigatory detention, support the

     officer's belief that criminal activity was occurring. Com. v. Wilson, 622 A. 2d 293, 295

    ·(Pa. Super. 1993). Reasonable suspicion is not probable cause and therefore a lesser

     showing of facts, ln both quantity and reliability. will justify an investigatory detention.

     Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153 (2000).

            It is well settled that handcuffing of an individual does not automatically turn an

     investigative detention into an arrest. Rosas at 348. A police officer may for their safety,

     handcuff an individual as part. of an investigatory detention. Commonwealth v ..

     Guilleso.ie,. 745 A.2d 654, 660-661 (Pa. Super.2000). The test for whether an individual
     is under arrest is an objective one viewed in "the light of the reasonable impression



                                                       6
 c
l




     conveyed to the person subjected to.the seizure rather than the strictly subjective view

     of the officers or the person being seized. Com. v: Butler, 729 A. 2d 1134, 1137 (Pa.

     Super. 1999) appeal denied, 560 Pa. �68, 742 A.2d 167 (1999).

            Based on the facts in this case; I found that under the totality of the

     . circumstances the police had more than .sufficient evidence to form the reasonable

     suspicion that the defendant was engaged in criminal· activity so as to be able to validly

     conduct an investigatory detention; For months, Defendant had been under

     investigation by Detective Cavanaugh for- suspicion of selling heroin and firearms. Using

     informants, DetectiveCavanauqh tracked Defendant's drug and gun-selling activity as

     well as his current whereabouts. Moreover, he knew that once the search warrant on

     the Howard Avenue house was executed, the Defendant would likely try to stash away

     drugs and firearms in his possession and the Officers who were tasked with monitoring

     Defendant were aware ofthis. (N.T. Suppression Hr'ng 2/27/17 at 74.)

            When the officers arrived at the storage locker they immediately recognized the

     Defendant from the various photographs that they were shown by Detective

     Cavanaugh. They recognized the vehicle that:they were tasked with tracking down by

     its make, model, color, and license plate. Defendant's departure from East End Avenue

     address and arrival at the storage facility with a large tote bag coincided perfectly with

     the execution of the warrant on the Howard Avenue location. Officer Hagy testified that

     as a result of his extensive training and experience in narcotics investigations that he

     was aware that sellers   of firearms and drugs often use storage lockers as their stash
      houses and that he believed that the red tote bag contained illegal items. (N.T.




                                                   7
Suppression Hr'ng 2/21/17 at 27.)'Given these circumstances in their totality, it was

reasonable for Officer Hagy to subject the Defendant to an investigatory detention.
                                                                                        .          .
         Moreover, the actions of Officer Hagy did not transform the investigatory
                                    .                           .                  ..                  .
detention into a custodial arrest. When Officer Hagy commanded the Defendant to put

down the. _bag and slowly back up he did so out of concern for officer safety. 1 He

realized that there was another individual in the Defendant's vehicle and that he would

be unable to approach Defendant without exposing his back to the individual. Even with

Detective Whiteford as backup there were OQIY two officers to handle two individuals

and so in an abundance of caution, he handcuffed Defendant and told ·him to sit on the

curb while he called for backup. I found that the actions taken by .Qfficer Hagy were

reasonable for the purposes of officer safety and reasonable given the circumstances of

the situation. Additionally, I note that it was not reasonable for Defendant to believe that

he was under arrest .at that time. He was informed after being handcuffed that he was

merely being detained and he was asked to sit on the curb. While his liberty at that

moment was somewhat restricted, it was of limited duration and done for the purposes

of officer safety and within the ambit of an investigatory detention.

         Once Defendant gave false identification to Officer Caple there was probable

cause to arrest him. At that moment, the investigatory detention became an arrest. The

mere fact that he was handcuffed at thetime that the officer was-trying to ascertain his

identity does not transform the detention into anything more.




I Indeed, it turns out that this concern for officer safety was entirely warranted given the fact that a subsequent
search of the tote bag Defendant was holding at the time he was detained contained a firearm.

                                                            8
i                                                                                              ..


                                             CONCLUSION · .
                           .   .                  .
              . Because. there was.sutficient evidence for'the police officers to have a

    reasonable: suspicion that the Defendant was engaged in criminal activity and thus.
          .                         .                       .            .                 .

    .subject him to an investigatory detention, Defendant's appeal should be .dismlssed.

    Accordingly, I enter t_he follo"""ing:




                                                      9
,
;




                IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                          CRIMINAL


           COMMONWEALTH OF PENNSYLVANIA

                     vs.                                                       No. 3943-2016


           JOSE LUIS GONZALES


                                                           ORDER

           BY: WRIGHT, J.


                     AND NOW, this         11� day of October, 2017, the Court hereby submits this
           Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.


                                                                  BY THE COURT:



                                                                                   IGHT


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