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                                  2015 PA Super 266


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

SALEEM SHABEZZ

                            Appellee                  Nos. 1639 EDA 2014 AND
                                                           1702 EDA 2014


      Appeal from the Orders Entered April 2, 2014 and May 15, 2014
           In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0012538-2013 and CP-51-CR-0015450-
                                   2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD, JJ.*

OPINION BY STABILE, J.:                           FILED DECEMBER 21, 2015

        Appellant, the Commonwealth of Pennsylvania, appeals from the trial

court’s April 2, 2014 and May 15, 2014 orders suppressing evidence.        We

affirm.

        We begin with a review of the pertinent facts, as gleaned from the

transcript of the suppression hearing.1 Sergeant Michael Cerutti (“Sergeant

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   In reviewing a trial court’s suppression decision, we must confine our
review to the transcript of the suppression hearing. In re L.J., 79 A.3d
1073, 1082-85 (Pa. 2014). Given Appellee’s success here, the case did not
proceed to trial and the suppression hearing transcript is the only one
available.
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Cerutti”), a member of the narcotics enforcement team of the 15 th District

police department in the City of Philadelphia, testified that on June 1, 2013,

he was overseeing a surveillance operation at the McDonald’s restaurant at

the intersection of Cottman and Roosevelt Boulevards in the City of

Philadelphia.   N.T. Hearing, 4/2/14, at 7-9.     Surveillance commenced at

7:30 or 7:40 p.m.      Id. at 11.    Sergeant Cerutti has been involved in

“hundreds of arrests” at that location and it has been a hot spot for at least

three years. Id. at 9-10. He testified that participants in the transaction

would commonly meet at the McDonald’s and then travel to a nearby 7-11 to

complete the exchange.    Id. at 9-10.     Sergeant Cerutti did not personally

observe the transaction at issue in this case, but received reports from

members of his team who were on the scene and gave the order to stop

Appellee, Saleem Shabezz, and the other involved parties. Id. at 17-18.

      Officer Steven Burgoon (“Officer Burgoon”) testified that he observed

Appellee engage in a drug transaction in the 7-11 parking lot.            Officer

Burgoon    confirmed   Sergeant     Cerutti’s   testimony   that   many     drug

transactions occur at the location involved in this case. Id. at 21. On the

evening in question, a member of the surveillance team informed Officer

Burgoon that a tan Nissan was leaving the McDondald’s. Id. at 22. Officer

Burgoon and his partner, Officer James Wade (“Officer Wade”), followed the

Nissan in their unmarked vehicle. Id. The Nissan drove from McDonald’s to

the 7-11 parking lot one block away. Id. at 22. Shortly thereafter, Officer


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Burgoon observed a red Acura arrive in the 7-11 parking lot and park

several spaces from the Nissan. Id. From his vantage point 45 feet away,

Officer Burgoon observed Appellee emerge from the passenger side of the

Acura, walk to the passenger side of the Nissan, open the passenger door,

and engage in a hand-to-hand drug transaction with the Nissan’s driver. Id.

at 22-23. The suspected transaction occurred shortly after 8:00 p.m. Id. at

39, 48.

       The trial court asked Officer Burgoon to explain why he believed he

saw a hand-to-hand drug transaction. Id. at 22. Officer Burgoon explained:

             I saw [Appellee] reach in towards the driver, did like a
       cupping act. I did not see any USC [United States Currency]
       being exchanged, but I saw what I believed was a transaction
       because the hand movement was like a dropping—picking up
       and dropping action from [Appellee].

              THE COURT: Did you see what was dropped?

              [Officer Burgoon]: No. It was small objects it looked like.

Id. at 23.     A written “PARS” report,2 prepared shortly after the incident,

stated only that Appellee opened the passenger door of the Nissan, leaned

in, and had a conversation with the driver.       Id. at 39.   Officer Apostolu

prepared the report based in part on a briefing from Officer Burgoon. Id. at




____________________________________________


2
   The record does not define this acronym, but our understanding is that it
refers to the Philadelphia Police Department arrest report.




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40.   Officer Burgoon did not mention any discrepancy to Officer Apostolu3

when he first reviewed the report. Id. at 44.

       After the transaction, Appellee proceeded back to the Acura, and both

vehicles began to depart from the 7-11 parking lot.             Id. at 22.   Officer

Burgoon positioned his vehicle to block the parking lot’s exit. Id. Sergeant

Cerutti arrived and positioned his vehicle so that the Acura and the Nissan

could not back up. Id. at 26. Officer Burgoon’s vehicle was “almost nose to

nose” with the Acura.        Id. at 26, 46.      Appellee immediately fled from the

passenger side of the Acura and was apprehended on foot by Officer

Apostolu, who arrested him and conducted a pat-down search. Id. Officer

Apostolu retrieved a baggie of marijuana and $1,800.00 in cash from

Appellee’s person. Id. The remaining vehicle occupants were ordered out

and handcuffed. Id. at 47, 49-50.

       From the front passenger-side floor of the Acura, police recovered a

bag containing packaged marijuana, packaging materials and a scale. Id. at

30-31, 51.     A bag recovered from the backseat contained marijuana and

Adderall.   Id. at 32, 52.       A Smith and Wesson nine-millimeter handgun—

later determined to be stolen—was recovered from the glove box. Id. at 29.

A clear baggie with marijuana was recovered from the center console. Id.


____________________________________________


3
   Officer Apostolu did not testify, and his first name is not evident in the
record.



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at 51. The Acura belonged to the driver’s mother. Id. at 33-34. A third

individual—a juvenile—was in the Acura’s back seat. Id. at 34.

       After his arrest, the Commonwealth charged Appellee with possession

of a controlled substance (marijuana), possession with intent to deliver a

controlled substance (marijuana), conspiracy, unlawful possession of a

firearm, and possession of an instrument of crime at docket number CP-51-

CR-0012538-2013.4 In connection with the stolen handgun recovered from

the Acura’s glove box, the Commonwealth also charged Appellee with

robbery, theft by unlawful taking, receiving stolen property, conspiracy,

unlawful possession of firearms, assault, recklessly endangering another

person, and terroristic threats at docket number CP-51-CR0015450-2013.5

By order of April 2, 2014, Judge Paula Patrick granted Appellee’s motion to

suppress evidence at number 12538.               The same evidence is at issue in

number 15450, and the Commonwealth conceded that it was collaterally

estopped from challenging Appellee’s motion to suppress at number 15450.

By order of May 15, 2014, Judge Earl W. Trent, Jr. entered an order granting

Appellee’s motion to suppress at number 15450.               We have sua sponte



____________________________________________


4
  35 P.S. § 780-113(16) and (30), 18 Pa.C.S.A. §§ 903, 6105, 6106 and
907, respectively.
5
  18 Pa.C.S.A. §§ 3701, 3921, 3925, 903, 6105, 6106, 2701, 2705, and
2706, respectively.



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consolidated these cases for appeal, as they involve precisely the same facts

and legal issues.6

       The Commonwealth filed timely notices of appeal in both cases

pursuant     to     Pa.R.A.P.   311(d).        Neither   trial   judge   ordered   the

Commonwealth to file a concise statement of errors pursuant to Pa.R.A.P.

1925(b). The Commonwealth raises two issues for our review:

              I.      Did the lower court err in suppressing drugs, a gun,
                      and other evidence found in a car where [Appellee]
                      failed to prove a reasonable expectation of privacy in
                      the car?

              II.     Did the lower court err in suppressing drugs, a gun,
                      and other evidence found in a car where police
                      observed conduct that resembled prior drug
                      transactions within their experience and [Appellee]
                      fled when police stopped the car?

Commonwealth’s Brief at 4.

       We review an order granting a defendant’s suppression motion as

follows:

             This Court is bound by those of the suppression court’s
       factual findings which find support in the record, but we are not
       bound by the court’s conclusions of law. When the suppression
       court’s specific factual findings are unannounced, or there is a
       gap in the findings, the appellate court should consider only the
       evidence of the prevailing suppression party (here, appellee) and
       the evidence of the other party (here, the prosecution) that,
       when read in the context of the entire record, remains
       uncontradicted.


____________________________________________


6
    See Pa.R.A.P. 513, governing consolidation of multiple appeals.



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Commonwealth v. Millner, 888 A.2d 680, 685 (Pa. 2005).                        The

suppression court’s findings of fact are dependent upon its credibility

determinations. L.J., 79 A.3d at 1085. “[O]ur standard of review is highly

deferential with respect to the suppression court’s factual findings and

credibility determinations.” Id. at 1080 n.6.

       In its first argument, the Commonwealth asserts that Appellee had no

reasonable expectation of privacy in the Acura and therefore no standing to

seek suppression of any evidence recovered from the vehicle. In its second

argument, the Commonwealth asserts that the record does not support the

trial court’s findings of fact.      We find it useful to address these issues in

reverse order so that we can conduct our legal analysis after a thorough

assessment of the record and the trial court’s findings.

       At the conclusion of the suppression hearing, the trial court granted

Appellee’s motion to suppress because it disbelieved the Commonwealth’s

witnesses:7

              Officer Burgoon testified to things which I didn’t believe. I
       thought it was hard for me to believe certain things about him
       testifying with 45 feet away with a naked eye that he was able to
       see, quote, this transaction, and I asked him about that. He
       then began to kind of sort of explain. That’s not sufficient under
       the law, but I had a difficult time in believing some of the things
       he said.

N.T. Hearing, 4/24/14, at 68.
____________________________________________


7
  The hearing addressed the joint motion of Appellee and his co-defendant,
the driver of the Acura.



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        In her findings of fact, the trial court noted that the PARS report did

not describe a hand-to-hand drug transaction between Appellee and the

Nissan driver, merely a conversation. Trial Court Opinion, 8/13/14, Findings

of Fact ¶ 9. The court found Officer Burgoon’s account of the hand-to-hand

transaction not credible. Id. Officer Burgoon made the observations “from

nearly 45 feet away at around 7:30 p.m. without the aid of any binoculars

or night vision.   Id. at Findings of Fact ¶ 14 (emphasis in original). “This

Court had a difficult time believing that the officer was able to make out

such observations in the dark of night nearly 50 feet from where the

defendants were located.” Id. at Findings of Fact ¶ 15. “The [PARS] report

for this incident does not indicate that Officer Burgoon ever witnessed any

cupping of the hands or a hand to hand transaction take place in the parking

lot.”   Id. at Findings of Fact ¶ 23.   “It states that [Appellee] opened the

Passenger door and leaned in and had a brief conversation with [the Nissan’s

driver].” Id. “Further, Officer Burgoon did not tell [Sergeant Cerutti] that

he observed a cupping motion or anything like that in his report to his

supervisor.” Id.

        The trial court thus chose to credit the facts as stated in the PARS

report.    Id. at Findings of Fact ¶ 24.     The court did not credit Officer

Burgoon’s observations of the alleged hand-to-hand drug transaction, in part

because his view was “obscured.” Id. In summary:

               [N]othing of significance was ever really observed. The
        officers simply witnessed people talking in a parking lot near

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         their vehicles. This Court did not believe that any officer could
         have observed any alleged hand to hand transaction take place
         from nearly fifty feet away, yet alone from that vantage point at
         night. It would be next to impossible to see such movement
         from that distance at night without the aid of binoculars or night
         vision. In addition, the PARS did not state that the officers
         witnessed any such thing. This Court did find that the officers
         were conducting surveillance. This Court also determined that
         the officers had observed the suspects talking in a parking lot.
         But those are the only facts which the Commonwealth clearly
         established at the hearing.

Id. at 14.

         The Commonwealth argues the record does not support the trial

court’s finding that Officer Burgoon made his observations in the dark of

night.     As set forth above, the suppression transcript indicates that this

incident occurred shortly after 8:00 p.m. on June 1, 2013. The trial court

discredited Officer Burgoon’s testimony in part because it did not believe he

could observe a drug transaction from 50 feet away in the “dark of night”

without binoculars or night vision. Since this incident occurred around 8:00

p.m. on June 1, we agree with the Commonwealth that the record does not

support the trial court’s finding that the incident occurred in the “dark of

night.”8


____________________________________________


8
    The record contains no evidence of whether the sky was cloudless,
severely overcast, or anything in between. The record also does not support
the trial court’s finding that the arrest occurred at 7:30 p.m. As set forth in
our summary of the suppression transcript, Sergeant Cerutti testified that
the surveillance commenced at 7:30 p.m. and Officer Burgoon testified that
the arrest occurred shortly after 8:00 p.m. Regardless of this discrepancy,
(Footnote Continued Next Page)


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      Nonetheless, the “dark of night” finding was not the trial court’s only

basis for disbelieving Officer Burgoon’s account of the hand-to-hand

transaction. The trial court also relied on the PARS report. The PARS report

prepared shortly after the incident described conversation between Appellee

and the driver of the Nissan but not a hand-to-hand transaction. Thus, the

record contains evidence supporting the trial court’s finding that Appellee

and the Nissan driver engaged only in conversation.              Pursuant to the

applicable standard of review, that finding is binding on this Court.

      The Commonwealth argues that police were justified in stopping the

vehicles and arresting Appellee even if Officer Burgoon observed only a

conversation between Appellee and the Nissan driver. The Commonwealth

relies on the procession from McDonald’s to the 7-11 in accord with the

common practice of drug transactions at that location, the brief conversation

between Appellee and the Nissan driver, both cars moving to depart from

the 7-11 parking lot with no vehicle occupant having entered the store, and

Appellee’s immediate flight upon the appearance of the police.              The

Commonwealth argues that police had at least reasonable suspicion to stop

the Acura and Nissan as they were leaving the 7-11 parking lot and probable

cause to arrest Appellee in light of his flight from a lawful detention.

      Our courts recognize three levels of police interaction.
                       _______________________
(Footnote Continued)

the record does not support a finding that the arrest occurred in the dark of
night.



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             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
       reasonable suspicion; it subjects a suspect to a stop and period
       of detention, but does not involve such coercive conditions as to
       constitute the functional equivalent of arrest. Finally, an arrest
       or ‘custodial detention’ must be supported by probable cause

Com. v. Lyles, 54 A.3d 76, 79 (Pa. Super. 2012) affirmed, 97 A.3d 298 (Pa.

2014).

       The Commonwealth argues that even if we conclude the record

supports the trial court’s findings, the stop of the vehicles was an

investigative detention supported by reasonable suspicion.9 We discern the

existence of reasonable suspicion according to the following strictures:

              Regarding the stop, a police officer may, short of an arrest,
       conduct an investigative detention if he has a reasonable
       suspicion, based upon specific and articulable facts, that
       criminality is afoot. The fundamental inquiry is an objective one,
       namely, whether the facts available to the officer at the moment
       of the [intrusion] warrant a man of reasonable caution in the
       belief that the action taken was appropriate. This assessment,
       like that applicable to the determination of probable cause,
       requires an evaluation of the totality of the circumstances, with a
       lesser showing needed to demonstrate reasonable suspicion in
       terms of both quantity or content and reliability.

Com. v. Zhahir, 751 A.2d 1153, 1156-57 (Pa. 2000) (internal citations and

quotation marks omitted). “In conducting a reasonable suspicion inquiry, a

suppression court is required to ‘afford due weight to the specific, reasonable
____________________________________________


9
   The Commonwealth also argues it had probable cause to support the
warrantless arrests. Commonwealth’s Brief at 18-19. In light of our
disposition of this case, we need not address that issue.



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inferences drawn from the facts in light of the officer’s experience.’”

Commonwealth v. Carter, 105 A.3d 765, 775 (Pa. Super. 2014) (en

banc).

     We cannot conclude that the facts before us, as found by the trial

court, evince reasonable suspicion in support of the vehicle stop.      The

evidence deemed credible by the suppression court indicates that two

vehicles proceeded from a McDonald’s parking lot to a 7-11 parking lot

where Appellee stepped out of one vehicle and conversed with the driver of

the other.   The suppression court did not credit testimony indicating that

that Appellee did anything more than engage in conversation.        We are

cognizant that Sergeant Cerutti testified to making hundreds of arrests in

the vicinity of the McDonald’s and 7-11, which had been a hot spot for three

years. N.T. Hearing, 4/2/14, at 9-10. The suppression court apparently did

not credit Sergeant Cerutti’s testimony, as the court noted that the PARS

report contained no mention of a pattern of narcotics activity at that

location. Trial Court Opinion, 8/13/14, Findings of Fact ¶ 36. Rather, the

suppression court found as fact that police acted based on a conversation in

a parking lot and nothing more. Id. at ¶ 37. The court disbelieved much of

the Commonwealth’s evidence because several officers testified to facts that

were omitted from and/or inconsistent with the contemporaneous arrest

report. We must be highly deferential to the suppression court’s credibility

determinations. L.J., 79 A.3d at 1080 n.6.


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       Under these circumstances, we cannot conclude that the police had

reasonable suspicion to support an investigative detention of the Nissan and

Acura and their occupants. The United States Supreme Court has held that

a vehicle stop constitutes a seizure of all persons inside the vehicle.

Brendlin v. California, 551 U.S. 249, 251 (2007). Thus, all occupants of

the vehicle have standing to challenge the constitutionality of the stop. Id.

Pursuant to Pennsylvania law, any possessions Appellee abandoned in the

Acura are subject to suppression because police lacked reasonable suspicion

to detain Appellee. Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996).

Specifically, the Matos Court held that where police lack at least reasonable

suspicion to detain a suspect, any property that suspect discards during

flight is subject to suppression. Id.

       Applying the foregoing law to the record, in light of the suppression

court’s findings of fact and credibility determinations, is a simple matter.

The Commonwealth did not produce enough credible evidence to support a

conclusion that police had reasonable suspicion to detain the vehicle in which

Appellee was a passenger.10             As such, the trial court did not err in

suppressing all of the evidence retrieved from the vehicle and from

Appellee’s person after his arrest.            We therefore affirm the trial court’s

order.
____________________________________________


10
    Given our analysis, we need not discern whether Appellee had a
reasonable expectation of privacy in the vehicle.



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      Order affirmed.

      P.J.E. Ford Elliott files a concurring statement in which Judge Stabile

and Justice Fitzgerald join.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2015




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