J-S14021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

KADIR JACKSON

                            Appellee                     No. 1898 EDA 2013


                      Appeal from the Order June 5, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001919-2011


BEFORE: SHOGAN, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                               FILED OCTOBER 09, 2014

        The Commonwealth appeals from the order entered June 5, 2013, in

the Court of Common Pleas of Philadelphia County suppressing Kadir

Jackson’s statements to police officers.1        The Commonwealth claims the

court erred by suppressing Jackson’s confession on the ground that there

was no probable cause to arrest him. Based on the following, we affirm.

        The trial court set forth the factual history as follows:

              In the course of the investigation of the shooting death of
        Richard Curry on November 17, 2010, Detective Holmes received
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In compliance with Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth certified in its July 1, 2013, notice of appeal that the trial
court’s order terminates or substantially handicaps its prosecution of this
case. See Pa.R.A.P. 311(d).
J-S14021-14


     a note from Detective Fetters that Curry’s girlfriend, Felicia, had
     information about Jackson’s potential involvement in Curry’s
     murder…. Detective Holmes spoke to Felicia, who told him that
     Jackson had been having problems with Curry and that there
     had been an ongoing dispute between two neighborhood groups
     – 76th Avenue and Sharpnack Street. Felicia knew Jackson’s
     family and was familiar with the individuals associated with the
     two groups. She also stated that she had seen Jackson rapping
     in a YouTube video, the content of which was unclear on the
     record.2 Felicia also told Detective Holmes that she had heard
     from friends of friends that Jackson was bragging about the
     Curry shooting, but the context of the bragging is unclear on the
     record.
        2
           The content of the rap captured in the video may have
        been about a shooting or may have been about the
        ongoing conflict between 76th Avenue and Sharpnack
        Street.

           Based upon this information from Felicia and without a
     warrant, Detective Holmes went to Jackson’s home on November
     22, 2010 to question him about the murder of Richard Curry.
     Detective Holmes spoke with Jackson’s mother in the front door
     area while other officers stayed in the alley behind the home.
     Upon informing Jackson’s mother that he wished to speak with
     Jackson, Jackson’s mother called Jackson, and Detective Holmes
     spoke with Jackson by phone. Jackson told the detective that he
     was at his girlfriend’s house and would speak with detectives in
     ten minutes at a local Walgreens. Immediately after the phone
     conversation with Detective Holmes, Jackson exited the house
     from the back door.        There was conflicting evidence as to
     whether Jackson exited the house with another person. It is
     unclear to this court whether Jackson was actually fleeing, as he
     had lied to police about his whereabouts, but his exit from the
     home could be seen either as an attempt to avoid speaking with
     police or as his attempt to go to the Walgreens as arranged.
     Jackson was detained and handcuffed by officers and
     subsequently transported to the homicide unit at approximately
     1:00 p.m. Detective Holmes stated that he put Jackson in
     custody because Jackson had lied about being at his girlfriend’s
     house, he had attempted to flee from his home, and he was a
     “person of interest” for the homicide.

Trial Court Opinion, 10/8/2013, 2-3 (footnote omitted).

                                    -2-
J-S14021-14


       After Jackson was handcuffed, he was transported down to the police

station and was given his Miranda2 warnings. Jackson originally denied any

involvement in the shooting, but eventually confessed to shooting Curry with

a 9 mm pistol, stating: “I heard that [Curry] was looking for me, and on my

way home I ran into him in the driveway of 76th Avenue. [Curry] said to

me, ‘Let me holla at you.’ [Curry] then pulled out a gun, and I pulled mine

and shot him.       I ran across the street to the other driveway and went

home.’” N.T., 4/5/2013, at 91-92.

       Jackson was charged with murder, criminal conspiracy, and other

related offenses.      On November 29, 2012, he filed a pretrial motion to

suppress his statement made to police because it was “obtained illegally and

unconstitutionally and there was no knowing, intelligent and voluntary

waiver of [his] constitutional right to counsel and his constitutional right to

remain silent and be free from self-incrimination[.]”       Jackson’s Pretrial

Motion to Suppress Statement, 11/29/2012, at 1.        On April 5, 2013, the

court held a hearing on the matter. At that time, Jackson also argued the

police lacked probable cause to arrest him and, therefore, his statements to

police were inadmissible as the fruit of an illegal arrest. N.T., 4/5/2013, at

5-6. Following the hearing, the Commonwealth filed a responsive letter brief

on May 2, 2013.

____________________________________________


2
    See Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -3-
J-S14021-14


       Subsequently, on June 5, 2013, the trial court entered an order, and

corresponding opinion, granting Jackson’s motion to suppress because it

found the police did not have probable cause to arrest him.3                   The

Commonwealth filed this timely appeal.4

       In the Commonwealth’s sole issue, it claims the trial court erred by

suppressing      Jackson’s     confession.       Commonwealth’s   Brief   at   11.

Specifically, the Commonwealth asserts probable cause did exist to support

Jackson’s arrest based on the following: (1) the victim’s girlfriend, “Felicia,”

was a “reliable” informant who knew Jackson from the neighborhood and

gave police information linking Jackson to the murder, including a YouTube

video where Jackson “rapped” about his dispute with the victim, and Felicia

had heard from mutual friends that Jackson was observed bragging about

the killing; (2) when police went to Jackson’s home to interview him, he lied

about his whereabouts, stating that he was at his girlfriend’s house when he

was really in the basement of the house; and (3) Jackson fled the house,

running from the basement door into a back alley.           Id. at 12-15.      The

____________________________________________


3
   On June 20, 2013, the court entered a second order, stating that while it
found Jackson’s statements at issue were voluntary, the confession was the
fruit of a poisonous tree.
4
    The court did not order the Commonwealth to file a concise statement of
errors complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, it
filed a concise statement on July 1, 2013. On October 8, 2013, the trial
court issued an opinion under Pa.R.A.P. 1925(a), which was substantially
similar to its June 5, 2013, opinion.



                                           -4-
J-S14021-14


Commonwealth contends Jackson’s “ruse to avoid contact with the police --

with regard to specific matter under investigation -- was a compelling sign of

his consciousness of guilt.”   Id. at 15 (citations omitted).    Moreover, it

states the court improperly minimized the probative value of the information

Felicia provided to police and erred by finding her unreliable. Id. at 17-19.

Lastly, the Commonwealth argues the court erred by failing to contribute

any evidentiary significance to Jackson’s alleged “flight” from the home

because one could not reasonably infer he was merely “hurrying along in

order to meet the police at Walgreens as arranged” as the trial court opined

in its determination. Id. at 19. Based on the totality of the circumstances,

the Commonwealth concludes Jackson “had already demonstrated by his

conduct that he was intent on evading [the police], rather than deal with the

matter forthrightly[,]” and taking him into custody was necessary to arrive

“at the truth while he was available to face the consequences.” Id. at 20.

     In reviewing an order granting a defendant’s motion to suppress

evidence,

     [w]e are bound by that court’s factual findings to the extent that
     they are supported by the record, and we consider only the
     evidence offered by the defendant, as well as any portion of the
     Commonwealth’s evidence which remains uncontradicted, when
     read in the context of the entire record. Our review of the legal
     conclusions which have been drawn from such evidence,
     however, is de novo, and, consequently, we are not bound by
     the legal conclusions of the lower courts.

Commonwealth v. Busser, 56 A.3d 419, 421 (Pa. Super. 2012), quoting

Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012).

                                    -5-
J-S14021-14


      In addition, “[i]t is within the suppression court’s sole province
      as factfinder to pass on the credibility of witnesses and the
      weight to be given their testimony.”         Commonwealth v.
      Elmobdy, 2003 PA Super 158, 823 A.2d 180, 183 (Pa. Super.
      2003). The suppression court is also entitled “to believe all, part
      or none of the evidence presented.”          Commonwealth v.
      Benton, 440 Pa. Super. 441, 655 A.2d 1030, 1032 (Pa. Super.
      1995). Finally, at a suppression hearing, the Commonwealth
      has the burden of “establish[ing] by a preponderance of the
      evidence    that     the   evidence   was    properly   obtained.”
      Commonwealth v. Culp, 378 Pa. Super. 213, 548 A.2d 578,
      581 (Pa. Super. 1988).

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011).

      With respect to the existence of probable cause for an arrest, we are

guided by the following principles:

             Probable cause to arrest exists 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.

      Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d 14,
      27 (Pa. Super. 2008) (internal citations and quotation marks
      omitted).

      . . . . It is the facts and circumstances within the personal
      knowledge of the police officer that frames the determination of
      the existence of probable cause. See, e.g., Commonwealth v.
      Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973) (“Probable
      cause exists if the facts and circumstances known to the officer
      warrant a prudent man in believing that an offense has been
      committed.”).

Galendez, 27 A.3d at 1046.




                                      -6-
J-S14021-14


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

applicable law, and the well-reasoned opinion of the Honorable Linda

Carpenter, we conclude the Commonwealth’s sole issue on appeal merits no

relief.     The trial court opinion comprehensively discusses and properly

disposes of the question presented. See Trial Court Opinion, 10/8/2013, at

4-8 (finding the police lacked probable cause based on the following:          (1)

with      respect   to   the   Commonwealth’s    allegation   regarding   Felicia’s

statements to police that Jackson had been bragging to people in the

neighborhood that he had murdered the victim, this contention was not

supported by the record as Detective Holmes testified Felicia informed him

that “[Jackson] was in the area bragging about the shooting of Mr. Ricky

Curry,”5 but to whom Jackson was bragging was unclear, and the detective’s

testimony does not indicate if Jackson stated he was involved in the shooting

or merely talking about the incident; (2) the police lacked sufficient objective

facts and independent corroboration where (a) the specificity of Felicia’s

information was insufficient as it did not reflect a special familiarity with

Jackson’s affairs because the video was on a public website and the rivalry

between Jackson’s and the victim’s neighborhood groups was likely known

by community members, (b) Felicia’s background information was not

provided to the court nor did the Commonwealth present evidence as to how
____________________________________________


5
    N.T., 4/5/2013, at 38.




                                           -7-
J-S14021-14


Felicia came upon this information, (c) the Commonwealth did not introduce

the YouTube video or any testimony that a police officer or detective saw the

video, and (d) there was no police follow-up on Felicia’s information about

Jackson’s bragging, as to whom Jackson had been bragging or as to the

specific content of the bragging; (3) while Jackson did lie about his

whereabouts to police which is indicative of consciousness of guilt, there was

inconclusive evidence of flight because it was unclear whether he was

actually attempting to flee from police; and (4) the court was not presented

with any other factors to consider along with the perceived flight, other than

Felicia’s uncorroborated information).

      We agree with the court’s analysis and we reiterate the sentiment that

we “are bound by that court’s factual findings to the extent that they are

supported by the record.”     Busser, 56 A.3d at 421.       Here, the record

substantiates the trial court’s findings, particularly where Detective Holmes

testified that he had a conversation with Felicia regarding the acrimonious

relationship between Jackson and the defendant, but he did not formally

interview her.   N.T., 4/5/2013, at 36.   Moreover, other than stating that

Felicia told him the two men had an ongoing dispute and that Jackson was in

the area “bragging about the shooting,” Detective Holmes did not testify that

Felicia provided him with any details regarding Jackson’s involvement in the

shooting.   Id. at 38.     As such, there was no demonstrably reliable

information that Jackson committed the murder.


                                    -8-
J-S14021-14


      Furthermore, the record indicates that Detective Holmes went to

“make contact” with Jackson because “based on information [he] received

from the decedent’s girlfriend, [he] wasn’t going to just take that as a

whole. [He] just wanted to make contact with Mr. Jackson to see was there

a problem and did he know anything about this incident.”       Id. at 38-39.

After the detective arranged to meet with Jackson at another location to

question him, Jackson was observed “exit[ing] the rear door [of his home] in

haste.”   Id. at 13.    As found by the trial court, there was inconclusive

evidence to establish whether Jackson had absconded, or whether he was

going to meet the police at the designated location. Based on these facts

and circumstances, the police only had a falsehood from Jackson with

respect to his actual whereabouts. Accordingly, one cannot reasonably infer

there was sufficient information to warrant a belief that an offense had been

committed by Jackson, supporting probable cause for his arrest. Therefore,

because we conclude the trial court, in its opinion, thoroughly discussed and

properly disposed of the only issue raised by the Commonwealth on appeal,

we rest on its well-reasoned basis.

      Order affirmed.

      Judge Shogan joins this memorandum.

      Judge Platt files a dissenting memorandum.




                                      -9-
J-S14021-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2014




                          - 10 -
Circulated 09/17/2014 10:38 AM
Circulated 09/17/2014 10:38 AM
Circulated 09/17/2014 10:38 AM
Circulated 09/17/2014 10:38 AM
