J-S23010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANDREW LAMAR COOPER

                            Appellant                   No. 1080 EDA 2016


          Appeal from the Judgment of Sentence November 18, 2015
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0004711-2014



BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 26, 2017

       Appellant, Andrew Lamar Cooper, appeals from the judgment of

sentence entered on November 18, 2015, following his jury trial convictions

for aggravated assault, robbery, conspiracy, possessing an instrument of

crime,1 and other related firearm offenses. We affirm.

       The trial court set forth the facts of this case as follows:

         On May 27, 2014, at 8:44 a.m., Norristown Police Officer
         Kevin Fritchman saw a gold Honda CR-V automobile on the
         100 block of Wayne Avenue in the borough of Norristown.
         At first it appeared unoccupied, but Officer Fritchman then
         saw two black males in the Honda. One was [A]ppellant,
         who was seated on the driver’s side. Officer Fritchman did


____________________________________________


1
    18 Pa.C.S.A. §§ 2702, 3701, 903, respectively.
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           not approach the vehicle; as he testified, he had no reason
           to do so.

           After Officer Fritchman saw both occupants of the vehicle
           enter 111 Wayne Avenue, he checked the license plate
           number of the vehicle and learned it had been reported
           stolen from Plymouth Township. Officer Fritchman then
           drove around the block for a few minutes and saw the
           vehicle again, just several blocks away from the 100 block
           of Wayne Avenue, at a stop sign at Powell and Spruce
           Streets in Norristown. Appellant was in the passenger seat
           of the automobile. Officer Fritchman then stopped the
           Honda, but the driver and [A]ppellant fled on foot. After a
           brief chase, [A]ppellant was apprehended and taken to
           Norristown Police Department on charges related to theft of
           the motor vehicle.

Trial Court Opinion, 5/27/2016, at 5-6.

      Thereafter, “while he was in custody, [Appellant] gave [police] a

detailed statement in which he confessed to shooting [a convenience store

clerk] during [a] robbery[.]”     Id. at 2.   More specifically, the trial court

recited:

           [The victim was] working at a convenience store in the early
           morning hours of April 30, 2014, [when] a masked man
           wearing gloves entered, pointed a gun at him, and
           demanded money. Other men entered the store and bound
           him with plastic zip ties. The masked man, whose height
           and complexion matched [A]ppellant’s, shot [the victim] in
           frustration when [the victim] was unable to open the cash
           register.

           The robbers committed an almost-perfect crime by leaving
           behind almost no forensic evidence with which police could
           have identified them.         The police detectives who
           investigated the crime recovered a bullet fragment from
           [the victim’s leg] but could not determine whether it was
           .38 caliber or .357 caliber ammunition. They also recovered
           a stolen green Honda that they believed [was] driven by the
           robbers. Inside the Honda the detectives found a backpack


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         and a glove; and inside the backpack were zip ties similar to
         the ones used to restrain [the victim], and more gloves.
         The detectives did not obtain any fingerprint or DNA
         evidence. [However, Appellant’s statement to police after
         his arrest on charges related to theft of a motor vehicle]
         corroborated the evidence collected by the detectives [in
         the robbery matter].

Id. at 2.

       In connection with the robbery, the Commonwealth charged Appellant

with the aforementioned crimes.           Prior to trial, Appellant filed a motion to

suppress all of the evidence obtained from the vehicle stop, alleging the

police lacked reasonable suspicion or probable cause to believe criminal

activity was afoot. Appellant also argued that his statement to police was

the product of unreasonable police delay and obtained in violation of his due

process rights.      On August 26, 2015, the trial court held a suppression

hearing and denied relief. The matter immediately proceeded to a jury trial.

On August 27, 2015, the jury convicted Appellant of the previously

mentioned offenses.         On November 18, 2015, the trial court sentenced

Appellant to an aggregate term of 15 to 30 years of imprisonment.               This

timely appeal resulted.2
____________________________________________


2
     The trial court granted Appellant nunc pro tunc relief to file a
post-sentence motion, and later a supplemental post-sentence motion. By
order entered March 15, 2016, the trial court denied Appellant’s
post-sentence motions. On March 31, 2016, Appellant filed a notice of
appeal. On April 6, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on May 27, 2016.




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       On appeal, Appellant presents the following issues3 for our review:

            I.         Whether the trial court committed an error of law
                       and/or abused its discretion in denying [Appellant’s]
                       motion to suppress his arrest and the subsequent
                       poisoned fruit thereof where police did not possess
                       probable cause to believe that he had committed a
                       crime[?]

            II.        Whether the trial court committed an error of law
                       and/or abused its discretion in denying [Appellant’s]
                       motion to suppress his statement to police where the
                       totality of the circumstances surrounding the taking of
                       the statement render the statement involuntary[?]


Appellant’s Brief at 4 (complete capitalization omitted; roman numerals

supplied).

       In        his   first   issue   presented,   Appellant   contends   that    “to   be

constitutionally valid, at the time of his arrest, police were required to

possess probable cause that Appellant [] either stole the vehicle, or was in

possession of a vehicle that he knew was stolen.”                 Id. at 12.      Appellant


____________________________________________


3
   Appellant presented two additional issues before the trial court that he
does not raise currently on appeal. Appellant challenged: 1) his convictions
as against the weight of the evidence and, (2) the discretionary aspects of
his sentence, more specifically, that his aggregate sentence was
unreasonable and the trial court failed to consider his personal history.
Appellant has abandoned these issues on appeal by failing to provide any
discussion of the claims with citation to relevant authority, and, thus, we
consider them waived. See Commonwealth v. Johnson, 985 A.2d 915,
924 (Pa. 2009) (citation omitted) (“where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that
claim is waived.”).



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claims that when police first saw him in the vehicle, he was “in the driver’s

seat of a stationary, parked vehicle with a second occupant in the front

seat.” Id.    Citing this Court’s decision in In Interest of Scott, 566 A.2d

266 (Pa. Super. 1989),     Appellant claims that “a review of the facts as

testified [to] by Officer Fritchman demonstrates unequivocally that Appellant

[] was never seen driving the stolen vehicle” and “this mistake of fact is

highly material to the determination of whether Officer Fritchman possessed

probable cause to believe that Appellant [] was in possession of the stolen

vehicle.” Id. at 14. Moreover, Appellant argues that since he “was actually

seated in the passenger seat at the time the vehicle was stopped[,]” there

was no evidence to suggest that he was in control of the stolen vehicle. Id.

at 15. Appellant further claims the suppression court erred by considering

his flight as consciousness of guilt, because “Officer Fritchman attempted to

arrest Appellant [] before he fled.” Id. (emphasis in original).

      This Court applies a well-settled standard when reviewing the denial of

a motion to suppress evidence:

        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


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        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 an 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 courts
        below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–527 (Pa. Super. 2015)

(citations and brackets omitted).

      An officer has probable cause to make a warrantless arrest

        when the facts and circumstances within the police officer's
        knowledge and of which the officer has reasonably
        trustworthy information are sufficient in themselves to
        warrant a person of reasonable caution in the belief that an
        offense has been committed by the person to be arrested.

        Probable cause justifying a warrantless arrest is determined
        by the totality of the circumstances. Furthermore, probable
        cause does not involve certainties, but rather the factual
        and practical considerations of everyday life on which
        reasonable and prudent persons act.

Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012) (citations

and ellipsis omitted).

      Moreover, we have held:

        Probable cause means only the probability and not a prima
        facie showing of criminal activity. It is, of course, less than
        evidence which will justify a conviction. Once probable
        cause is established, it does not dissipate simply because
        the suspect is not charged with the particular crime which
        led to the finding of probable cause.

Commonwealth v. Canning, 587 A.2d 330, 332 (Pa. Super. 1991)

(citation omitted).

      Here, the trial court determined:


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           Officer Fritchman had probable cause to stop the [gold
           Honda] because he knew at the time it had been reported
           stolen. He had seen [A]ppellant in the driver’s seat when
           he first spotted the vehicle, and he found [A]ppellant in the
           passenger’s seat when he seized it. Therefore, he had
           probable cause to believe [A]ppellant had committed the
           felony of receiving stolen property.

Trial Court Opinion, 5/27/2016, at 6.

         We discern no abuse of discretion or error of law in denying

suppression. Here, there is no dispute that the vehicle at issue was stolen

and that police had obtained that information prior to the vehicular stop. At

that point, police had reason to believe that criminal activity was probably

afoot.    We reject Appellant’s reliance on In Interest of Scott to suggest

that Officer Fritchman possessed insufficient knowledge of facts and

circumstances to establish probable cause. In Interest of Scott dealt with

the sufficiency of the evidence to support juvenile adjudications for receiving

stolen property and unauthorized use of a motor vehicle.               In contrast,

probable cause means only the probability of criminal activity. It is less

than evidence which will justify, or sufficiently support, a conviction.     Here,

the facts and circumstances within the police officer's knowledge, i.e.

trustworthy     information   that   the   automobile   was   stolen   and   direct

observation of Appellant in the driver’s seat, were sufficient to warrant the

belief that a criminal offense had been committed by Appellant.                The

suppression court's factual findings are supported by the record and the

legal conclusions drawn from those facts are correct.         Because Appellant’s


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arrest was legal and the evidence obtained therefrom was properly obtained,

we discern no abuse of discretion or error of law in denying Appellant’s

motion for suppression based upon the vehicle stop.

      “Next, Appellant [] challenges the trial court’s denial of his motion to

suppress his statement to police where the totality of the circumstances

surrounding the taking of his statement rendered it involuntary.” Id. at 17.

Here, Appellant claims “[t]he Commonwealth failed to establish that the

physical environment surrounding Appellant[’s] statement was not coercive,

particularly with regard to the length of [] detention prior to giving the

statement and the duration and means of his interrogation, including tactics

employed with the purpose of draining his resistance to suggestion and

coercion.” Id. at 18. Appellant argues that questioning “did not begin until

nearly eight (8) hours after his arrest” while the police “executed a search

warrant at Appellant’s home.”    Id. at 19-20.    Appellant argues, however,

that, “the warrant and ensuing search were not aimed at obtaining evidence

in support of Appellant’s arrest for possession of a stolen car – the crime for

which Appellant was being held.” Id. at 20.

      Regarding the voluntariness of a statement to police, our Supreme

Court has stated:

        The test for determining the voluntariness, and thus the
        admissibility, of an accused's statement is the totality of the
        circumstances surrounding the statement. The mere fact
        that there is some passage of time between when an
        accused is arrested and when he or she gives an inculpatory
        statement does not constitute grounds for suppression of

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        the statement. This Court has set forth the following
        numerous factors that should be considered under a totality
        of the circumstances test to determine whether a statement
        was freely and voluntarily made: the duration and means of
        interrogation, including whether questioning was repeated,
        prolonged, or accompanied by physical abuse or threats
        thereof; the length of the accused's detention prior to the
        confession; whether the accused was advised of his or her
        constitutional rights; the attitude exhibited by the police
        during the interrogation; the accused's physical and
        psychological state, including whether he or she was
        injured, ill, drugged, or intoxicated; the conditions
        attendant to the detention, including whether the accused
        was deprived of food, drink, sleep, or medical attention; the
        age, education, and intelligence of the accused; the
        experience of the accused with law enforcement and the
        criminal justice system; and any other factors which might
        serve to drain one's powers of resistance to suggestion and
        coercion.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (internal citation

omitted).

     Important to this case, in Bryant, the defendant argued that his

statement was involuntary because he was in isolation in police custody for

over thirty hours. Id. at 725. In examining all of the factors listed above,

the Bryant Court noted that “[a]lthough [Bryant] was held for a lengthy

period of time prior to giving his inculpatory statement, part of the reason

for this was the enormous amount of evidence potentially relevant to the

murders that the detectives were continuing to analyze.” Id. The Bryant

Court ultimately determined that suppression was unwarranted. Id.

     Here, the trial court determined that Appellant’s statements to police

were voluntary under the totality of the circumstances.       Regarding the


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duration of the interrogation, the trial court rejected Appellant’s suggestion

that police arrested him and delayed his processing and arraignment to

facilitate his interrogation.     See Trial Court Opinion, 5/27/2016, at 8.

Instead,   the   trial   court   determined     that   police,   in   furthering   their

investigation, “worked as quickly and efficiently as they could, under the

circumstances, to obtain and execute [a search] warrant [of Appellant’s

home].” Id.      The trial court also noted that police advised Appellant of his

constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)

prior to making the statement at issue. Id. at 8-9. Police gave Appellant a

bathroom break, offered him food, and provided him with a beverage. N.T.,

8/26/2015, at 41.        Moreover, Appellant “had been arrested for robbery in

2008, had given a statement, and [] that statement [was] introduced into

evidence against him at trial[, thus,] demonstrat[ing] his understanding and

familiarity with speaking to law enforcement officers[, which] supports the

inference that [the] statement [at issue] was knowing, voluntary and

intelligent.” See Trial Court Opinion, 5/27/2016, at 9. Finally, upon further

review of the certified record, there was no evidence presented at the

suppression hearing that police physically abused or threatened Appellant or

that Appellant was injured, ill, drugged, or intoxicated during the interview.

      Based upon all of the foregoing evidence and our standard of review,

we discern no abuse of discretion or error of law by the trial court in finding

Appellant’s statement to police was knowing, voluntary, and intelligent. The


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duration of the interrogation was one of many factors for the trial court to

consider. Ultimately, the trial court determined that the length of time was

justified in light of the extensive ongoing criminal investigation, rather than

a strategy to force a confession from Appellant. Mere passage of time was

not enough to render Appellant’s statement involuntary in light of an

examination of the other relevant factors at play.     Hence, we discern no

abuse of discretion or error of law in denying suppression of Appellant’s

statement to police. Accordingly, Appellant’s second argument fails.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




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