J-S08020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEIYO DIXON,                               :
                                               :
                       Appellant.              :   No. 2668 EDA 2017


             Appeal from the Judgment of Sentence, July 7, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0011823-2014.


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                              FILED MAY 10, 2019

       Deiyo Dixon appeals from the judgment of sentence imposed after he

was convicted of possession with intent to deliver a controlled substance

(PWID), persons not to possess firearms, possession of a firearm with altered

manufacturer’s number, and possession of an instrument of a crime. 1 Dixon

asserts the police search of his girlfriend’s apartment was unconstitutional,

and appeals from his judgment of sentence. After careful review, we affirm.

       The trial court summarized the relevant facts as presented at Dixon’s

suppression hearing as follows:

          [T]he Commonwealth presented the testimony of
          Philadelphia Police Sergeant Sylvia Young. Sergeant Young
          testified that, on July 17, 2014, at approximately 8:00 p.m.,
          she and her narcotics team were conducting an investigation
____________________________________________


135 Pa. P.S. §780-113(a)(30), and 18 Pa.C.S.A. §§ 6105(a)(1), 6110.2.(a),
and 907, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       on the 2800 block of Stiles Street in Philadelphia, at which
       time [Dixon] was observed making suspected narcotics
       transactions.    In the first transaction, [Dixon] was
       approached by an unknown black male, who handed him
       United States currency; in exchange, [Dixon] reached into
       his pants pocket and handed the male a small item,
       suspected narcotics. Within a few minutes, a second black
       male drove up to [Dixon] and engaged in a brief
       conversation with him, which prompted [Dixon] to enter the
       premises at 1223 North 29th Street. Shortly thereafter,
       [Dixon] emerged from the [p]remises holding small items,
       suspected narcotics, which he handed to the second male.
       Police then converged on [Dixon] and placed him under
       arrest.

           Accompanied by two backup officers, Sergeant Young
       entered the exterior front door of the residence, which was
       ajar. It opened to a small foyer, where there was a door to
       a first-floor apartment on the left, and a door to a stairwell
       leading to the second-floor apartment on the right.
       Sergeant Young testified that she was advised by her
       surveilling officers (and given the timing of the events, she
       personally believed) that [Dixon] was going into the first-
       floor apartment. Accordingly, with their service weapons
       drawn, Sergeant Young and her backup officers knocked on
       the door to the first-floor apartment, which was answered
       by [Dixon’s] then-girlfriend, Robin Blackwell. [Ms. Blackwell
       identified herself as the renter of the property.] Sergeant
       Young asked Ms. Blackwell if anyone was inside the
       premises, to which she responded in the negative. Sergeant
       Young’s backup officers conducted a quick “clear” of the
       residence, at which time she and her backup officers
       holstered their weapons. Sergeant Young explained to Ms.
       Blackwell that her boyfriend ([Dixon]) was being arrested
       for selling narcotics, and that her apartment would be
       searched in one of two ways—namely, with a search warrant
       or with her consent. Sergeant Young further explained to
       Ms. Blackwell that if she provided consent, she could stop
       the search at any time and tell them to obtain a warrant;
       whereas if they obtain[ed] a warrant, the search is just
       executed and there is nothing that she could do. Ms.
       Blackwell decided to consent to the search, and signed a
       “consent to search” form, which the Commonwealth
       introduced as Exhibit “C-1”.


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             Sergeant Young testified that, upon receiving Ms.
         Blackwell’s verbal and written consent, she and her officers
         conducted a search of the residence, which yielded vast
         amounts of contraband (narcotics, paraphernalia and
         firearms)—all of which was placed before Ms. Blackwell so
         that she could see what was being removed. Additionally,
         all the items were inventoried in the consent to search form,
         which Ms. Blackwell further acknowledged via signature.
         Sergeant Young also testified that Ms. Blackwell was
         present/inside the entire time and there were never any
         threats made to her about searching the property.

             [Dixon] thereafter presented the testimony of his former
         girlfriend, Robin Blackwell. Ms. Blackwell testified that
         [Dixon] was her boyfriend at the time of the above events,
         and had a key to the apartment. She testified that he came
         and went as he pleased, and stayed there three times per
         week; she did not know there were drugs and guns in her
         apartment, nor how they got there. Ms. Blackwell testified
         that on the evening in question, she was just waking up
         when two white men entered her apartment with guns
         drawn, asking “Where is it?” She yelled at the men to “get
         out” of her apartment. They allowed her to get dressed,
         and a black female, Sergeant Young, entered the
         apartment. Ms. Blackwell testified that the officers were
         looking around the apartment before the sergeant entered
         and told her that they had a warrant coming. Ms. Blackwell
         also testified that the officers told her that if she did not sign
         the consent, they would damage the apartment while
         searching it with a warrant—they would put holes in the
         walls and pull up the floors—and that if they found any
         contraband, she would be arrested. Ms. Blackwell further
         testified that Sergeant Young was not cursing or yelling at
         the time, but she still felt threatened. She acknowledged
         that she signed the consent to search form in three different
         places, both prior and subsequent to the search. Finally,
         Ms. Blackwell testified that her father is a retired police
         officer, which she relayed to Sergeant Young, but did not try
         to call her father at any time during the above events.

Trial Court Opinion, 4/20/18, at 2-5 (citations and footnotes omitted).




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      The trial court ultimately denied the motion to suppress, and the case

proceeded to trial where Dixon was convicted of the above charges on April

25, 2016. Sentencing was deferred until a later date, at which point Dixon

failed to appear. The court issued a bench warrant for Dixon’s arrest. Over a

year later, Dixon was apprehended on May 31, 2017. Upon consideration of

a pre-sentence investigation, the court sentenced Dixon to six to twelve years’

of incarceration. Dixon filed post-sentence motions, which were denied. This

timely appeal follows.    Both Dixon and the trial court have complied with

Pa.R.A.P. 1925.

      Dixon raises one issue for our review: was the consent obtained from

Blackwell to search her apartment forced or coerced, and therefore, an illegal

search pursuant to both the United States and Pennsylvania constitutions?

See Dixon’s Brief at 2.

      Our standard of review is limited to the following:

         When presented with a challenge to the denial of a motion
         to suppress evidence, we are limited to determining whether
         the trial court's factual findings are supported by the record
         and whether the legal conclusions drawn from those findings
         are correct. In conducting our review, we may consider only
         the evidence of the prosecution and so much of the evidence
         for the defense as remains uncontradicted when read in the
         context of the record as a whole. If the trial court's factual
         findings are supported by the record, we are bound by those
         facts; however, we may reverse the suppression court when
         it draws erroneous legal conclusions from those factual
         findings.

Commonwealth v. Gonzalez, 979 A.2d 879, 883 (Pa. Super. 2009).




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      The Fourth Amendment to the United States Constitution protects the

right of persons in this country to be secure from “unreasonable searches and

seizures.” U.S. Const. Amend. IV. “Thus, pursuant to the protections of the

Fourth Amendment, before a police officer may conduct a search, he must

generally obtain a warrant that is supported by probable cause and authorizes

the search.” Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super.

2003) (citation omitted). A search warrant is not required, however, where a

person with the proper authority “unequivocally and specifically consents to

the search.” Id.

      The Commonwealth bears the burden of proving that the defendant

consented to a warrantless search. Commonwealth v. Randolph, 151 A.3d

170, 179 (Pa. Super. 2016). To establish a voluntary consensual search, the

Commonwealth must prove “that a consent is the product of an essentially

free and unconstrained choice—not the result of duress or coercion, express

or implied, or a will overborne—under the totality of the circumstances.” Id.

(citation omitted). Our Supreme Court has stated that although there is no

“hard and fast” list of factors that unequivocally proves voluntariness, courts

should give weight to the following considerations:

         1) the defendant's custodial status; 2) the use of duress or
         coercive tactics by law enforcement personnel; 3) the
         defendant's knowledge of his right to refuse to consent; 4)
         the defendant's education and intelligence; 5) the
         defendant's belief that no incriminating evidence will be
         found; and 6) the extent and level of the defendant's
         cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003).

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      Specifically, Dixon argues that Blackwell was effectively in custody

during the time of the search, making her consent invalid. He asserts that:

         The multiple police officers with their guns drawn, in a small
         two-room apartment created a threatening environment for
         [Blackwell]. She had observed these officers run toward her
         apartment building at night. It is unclear whether the
         officers were in uniform or undercover. The record also
         illustrates that the officers entered her small, two-room
         apartment without permission.            Any ordinary and
         reasonable person would have felt threatened and coerced
         under the circumstances. Any ordinary and reasonable
         person would have felt in custody under the circumstances.

Dixon’s Brief at 10. We disagree with Dixon’s assessment.

      This narrative of threats and coercion that Dixon lays out is largely an

adoption of Blackwell’s testimony. However, Blackwell’s assessment of the

events that occurred on July 17, 2014, are quite different than what Sergeant

Young recounted in her testimony.          The trial court explained that its

determination as to whether Blackwell’s consent was voluntary, centered on

credibility determinations. The court summarized the differing versions of the

encounter as follows:

            Here, the determination of voluntariness ultimately
         hinges on the credibility of the witnesses.         That is,
         depending on which version of events is credited, tips the
         scales in favor of, or against, a finding of voluntariness.
         Specifically, according to the Commonwealth’s witness,
         police knocked on the door with guns drawn, conducted a
         protective sweep of the residence, holstered their weapons,
         and then discussed Ms. Blackwell’s options in providing
         consent to search, which she could stop at any time, or
         proceed via search with a warrant.

            Conversely, according to [Blackwell], police entered the
         residence without her permission, stormed through it with


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         guns drawn, asking “Where is it?” She yelled at them to
         “get out”, which they refused to do, and they told her that
         they had a warrant coming. They also allegedly told her
         that if she did not sign the consent, they would damage the
         apartment while searching it with a warrant – i.e., put holes
         in the walls and pull up the floors – and that if they found
         any contraband, she would be arrested for it.

            Indeed, credibility in this case impacts most of the
         above-cited factors, namely custodial status, whether police
         used duress or coercive tactics, whether Ms. Blackwell knew
         that she could [effectively] refuse consent, and the level and
         extent of her cooperation.

Trial Court Opinion, 4/20/18, at 7.

      The trial court found Sergeant Young’s testimony more credible than

Blackwell’s. It explained that although Sergeant Young’s testimony contained

several inconsistencies, overall, it found her “forthright and very detailed in

her description [of events]” and that the inconsistencies were minor. Id. at

8 (citing N.T. 12/22/15, at 47-48).     At the suppression hearing, the court

further reasoned that:

         Ms. Blackwell had, I think, a lapse in her credibility in terms
         of who she thought was threatening her and why she signed
         the consent. It would be well within Ms. Blackwell’s bias,
         even though [Dixon] is no longer her boyfriend. . ., to
         disavow the reasons why or create other reasons why she
         signed the consent.       Clearly, she’s now aware of the
         ramifications of signing the consent and that would give her
         reason to be biased.

            When I weigh the credibility of both witnesses, I don’t
         find that Sergeant Young has a reason to fabricate her
         testimony. I do find that Ms. Blackwell would’ve had a
         reason to be less than forthcoming as to the reasons
         underlying her signing that consent. For those reasons, I
         find that Sergeant Young was credible, that Ms. Blackwell
         signed the consent willingly; she was not under any undue
         coercion when she did so.


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Id.

      Because all credibility determinations are made by the finder of fact, we

will not substitute our judgment for that of the trial court where, as in this

case, there is evidence that supports the determination that Blackwell’s

consent was valid. See Commonwealth v. Bell, 871 A.2d 267, 274 (Pa.

Super. 2005).    Thus, we are bound by the trial court’s determination of

Sergeant Young’s credibility.

      The trial court’s factual findings are supported by the record. Therefore,

we hold that the court did not err in concluding the police did not have

Blackwell in custody, and that Blackwell voluntarily consented to the police

searching her apartment. As such, we affirm Dixon’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/19




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