J-S46039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEREYRATH VAN                              :
                                               :
                       Appellant               :   No. 2350 EDA 2018

         Appeal from the Judgment of Sentence Entered June 25, 2018
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0001628-2016


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED DECEMBER 10, 2019

        Appellant, Sereyrath Van, appeals from the aggregate judgment of

sentence of six and one half to thirteen years’ incarceration, which was

imposed by the Honorable Diane E. Gibbons, after his conviction at a

stipulated bench trial for Possession With the Intent to Deliver (PWID)

(cocaine), PWID (marijuana), Possession of Drug Paraphernalia, Criminal Use

of Communication Facility, and Conspiracy.1 We affirm.

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

facts of this case as follows,

        The investigation that lead [sic] to [Appellant’s] arrest was
        initiated based on information received from a confidential
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30), (32), 18 Pa.C.S. §§ 7512(a), 903, respectively.
J-S46039-19


     informant. Officer Gansky first had contact with the informant a
     week or two [] prior to December 14, 2015. On December 14 th,
     the informant arrived at the Bensalem Township Police
     Department and spoke to Officer Gansky. The informant advised
     Officer Gansky that he had personal knowledge regarding an
     individual identified as Gunnar Derry. He stated that Derry sells
     marijuana, that he was seen with multiple pounds of marijuana in
     the past and that he was currently offering to sell marijuana.
     Officer Gansky obtained a photograph of Gunnar Derry from police
     records and showed that photograph to the informant. The
     informant confirmed the individual depicted in the photograph was
     the same individual the informant knew to be selling marijuana.

     Working with the police, the informant contacted Derry and
     arranged to purchase 5 pounds of marijuana for $15,000.
     Although Officer Gansky was in and out of the room being utilized
     by the confidential informant, he heard the confidential informant
     set up the purchase. After speaking to Derry, the confidential
     informant advised Officer Gansky that Derry would be arriving at
     the Applebee’s Grill & Bar located on Street Road in Bensalem
     Township, Bucks County, at 4:45 p.m. that day to make the sale.
     The confidential informant further advised Officer Gansky that
     Derry’s supplier would be present and participate in the
     transaction. Officer Gansky testified that he was advised that
     Derry would act as the “middleman” in the transaction. Based on
     information received from Derry, Derry’s supplier was described
     as an Asian male who would be driving a white BMW Alpine with
     distinctive rims. Derry sent photographs of the marijuana to be
     purchased and the vehicle that his supplier would be driving to the
     confidential informant’s cellphone.    Those photographs were
     preserved by Officer Gansky and were admitted into evidence as
     Exhibits CS-1 and CS-2.

     Police then proceeded to the Applebee’s to conduct surveillance.
     Officer Gansky made the following observations.                 At
     approximately 4:45 p.m., Derry arrived at the Applebee’s parking
     lot in a Volkswagen. Immediately after Derry’s arrival, a white
     BMW drove into the parking lot. The vehicle matched the
     description of the vehicle Derry’s supplier was reported to be
     driving. The driver and sole occupant of the vehicle was an Asian
     male. When the BMW arrived, Derry immediately got out of the
     Volkswagen and got into the passenger seat of the BMW, which
     then circled the parking lot three times before parking. Derry and
     [Appellant] then got out of the BMW and approached the

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        Applebee’s. Derry was detained directly outside the Applebee’s.
        Sergeant Schwartz located [Appellant] seated at the bar.
        Sergeant Schwartz told [Appellant] he was being detained, placed
        [Appellant] in handcuffs, patted him down, and took him to the
        area immediately outside the front entrance where Officer Gansky
        identified him as the individual who had arrived in the BMW and
        interacted with Derry in the parking lot. After the smell of raw
        marijuana was observed emanating from the trunk of the BMW,
        the BMW was searched. Five freezer bags of marijuana [were]
        found inside a box in the trunk. [Appellant] was then transported
        from the scene.

TCO, 12/20/18 at 3-4 (citations to notes of testimony omitted). Following his

arrest, Appellant waived his Miranda2 rights and gave a statement admitting

that he had gone to the Applebee’s to sell marijuana pursuant to the

arrangements made with the confidential informant. At a subsequent search

of Appellant’s apartment, police seized approximately 14 pounds of marijuana,

approximately 8.2 ounces of cocaine, cutting agents, digital scales, packing

materials, a cocaine press and a Smith and Wesson .9 mm firearm. TCO,

12/20/18 at 2.

        On September 12, 2016, Appellant filed a motion to suppress any and

all physical evidence and his statement given to police; Appellant challenged

the constitutionally of his stop, detention and arrest, the statement he gave

to police and the subsequent search of his apartment. The trial court held a

suppression hearing on June 20, 2017.




____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1996).

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      Appellant withdrew his motion to suppress his statement to police and

physical evidence obtained from a search of his apartment. See Letter from

Attorney Louis R. Busico, 6/20/17; N.T. 6/25/18 at 2. Therefore, the only

issues before the trial judge at the suppression hearing were whether the

encounter between police and Appellant inside the Applebee’s was an

investigatory detention or arrest, and whether the police had the requisite

probable cause or reasonable suspicion.       After taking the matter under

advisement and receiving briefs from the parties, the trial court denied the

motion to suppress by Order dated December 22, 2017.

      The trial court announced its findings of fact and conclusions of law at a

December 25, 2017 hearing.      The trial court found, “[t]here was really no

dispute as to the facts, whether the facts were elicited on direct examination

or cross-examination of the Commonwealths’ witnesses.” N.T. 6/25/18 at 5-

6. “There is no inconsistence among the testimony that was presented.” Id.

The trial court asked counsel for Appellant and the Commonwealth if there

was “any specific finding of fact or any conflict in the evidence that they saw

that you would like me to make a ruling on.” Id. at 6. Counsel for Appellant

and the Commonwealth both responded, “[n]o.” Id. The trial court found

Officer Gansky and Sergeant Schwartz “credible” and “uncontradicted.” Id.

Additionally,

      [w]ith regard to conclusion of law, the issue is whether or not at
      the time [Appellant] was detained, whether that was an
      investigatory detention or that was an arrest. . . . I find that the
      informant that was utilized in this case that began the

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       investigation into the alleged delivery of marijuana into Bucks
       County was a known informant, that the information was provided
       by the informant that a deal was going to occur in Bucks County.
       The police monitored the contact between the confidential
       informant and an individual identified as Mr. Derry. . . . and that
       the police were able to confirm a number of allegations that were
       being made by that informant sufficient to establish the reliability
       of that informant; specifically, the source, the type of controlled
       substance, the source of the controlled substance, the location of
       the delivery, the time of the delivery, and the individuals involved
       as well as the vehicle involved.

       I find that while it was a close call, I find that the police actions in
       taking and stopping [Appellant] and advising him that he was,
       quote, end quote, being detained, was not an arrest, that he was
       – that that was investigatory detention for [Appellant] to be
       investigated and some subsequent investigation to be conducted.

Id. at 7-8.

       The Appellant then proceeded to a stipulated bench trial on that same

date and was convicted of the above-listed counts. On the same day, the trial

court sentenced Appellant to the aforementioned judgment of sentence. On

August 1, 2018, Appellant filed this timely direct appeal.3

       Appellant presents the following issue(s) for our review:

       1.    Whether the [t]rial [c]ourt erred by concluding that
       [Appellant] was merely subjected to an investigative detention
       rather than a custodial arrest by police while inside of the
       Applebee’s?

____________________________________________


3   On August 30, 2018, Appellant filed his timely statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed
its opinion pursuant to Pa.R.A.P. 1925(a) on December 20, 2018.
Subsequently, Appellant filed a motion with this Court to permit him to file a
supplemental Rule 1925(b) Statement, which this Court granted. Appellant
filed a timely supplemental Rule 1925(b) Statement on March 12, 2019. The
trial court filed its supplemental Rule 1925(a) opinion on May 29, 2019.


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      2.     Whether the [c]ourt erred in denying suppression insomuch
      as the arrest was not supported by probable cause as law
      enforcement were acting on vague and uncorroborated
      information from a confidential source that had yet to be proven
      reliable?

      3.     Whether the [t]rial [c]ourt erred by denying [Appellant’s]
      motion to suppress physical evidence because under the totality
      of the circumstances law enforcement lacked reasonable suspicion
      to effectuate an investigative detention as they were acting on
      vague and uncorroborated information received from a
      confidential source that had yet to be proven reliable?

      4.     Whether the [t]rial [court] erred in denying [Appellant’s]
      motion to suppress as law enforcement failed to adduce specific,
      articulable reasons to believe that [Appellant] was armed and
      dangerous thereby justifying a frisk?

      5.    Whether the [t]rial [c]ourt abused its discretion in denying
      the motion for reconsideration of sentence without first allowing
      [Appellant] to offer the mitigating evidence proffered by counsel
      in the motion?

Appellant’s Brief at 9.

      Appellant’s first three issues on appeal necessitate an analysis of his

encounter with police inside the Applebee’s. Appellant argues the encounter

was the functional equivalent of an arrest and the police lacked probable cause

to make that arrest.      Appellant urges this Court to conclude that “the

suppression court erred that Appellant was subjected to an investigative

detention rather than a seizure inside of the Applebee’s Restaurant.”

Appellant’s Brief at 15. Appellant argues that totality of the circumstances

clearly establish that Appellant was in the functional equivalent of custody

while inside of the restaurant.   Appellant argues that this arrest was not




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supported by probable cause.     Appellant argues, in the alternate, that the

investigative detention was not supported by reasonable suspicion.

      We consider Appellant's suppression issues in light of the following

standard of review:

      In reviewing the denial of a suppression motion, our role is to
      determine 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, we are bound by these
      findings and may reverse only if the court’s legal conclusions are
      erroneous. Where, as here, 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 our plenary review.

Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (citations and

internal brackets omitted). Our scope of review from a suppression ruling is

limited to the evidentiary record created at the suppression hearing.

Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).

      The trial court determined that Appellant was subjected to an

investigative detention inside the Applebee’s. N.T. 6/25/18 at 7-8.

      In evaluating the interaction between Appellant and the police inside the

Applebee’s we start with the fact that,

      [t]he law recognizes three distinct levels of interaction between
      police officers and citizens: (1) a mere encounter; (2) an
      investigative detention ...; and (3) a custodial detention. A mere

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      encounter can be any formal or informal interaction between an
      officer and a citizen. The hallmark of this interaction is that it
      carries no official compulsion to stop or respond.        A mere
      encounter does not need to be justified by any level of police
      suspicion. [A]n ‘investigative detention’ ... carries an official
      compulsion to stop and respond.         Because an investigative
      detention has elements of official compulsion it requires
      reasonable suspicion of unlawful activity. [A] custodial detention
      occurs when the nature, duration and conditions of an
      investigative detention become so coercive as to be, practically
      speaking, the functional equivalent of an arrest. A custodial
      detention requires that the police have probable cause to believe
      that the person so detained has committed or is committing a
      crime.

Commonwealth v. Dix, 207 A.3d 383, 388 (Pa. Super. 2019), appeal denied,

No. 211 EAL 2019, 2019 WL 4164778 (Pa. Sept. 3, 2019) (internal citations

and quotation marks omitted). “The key difference between an investigative

detention and a custodial detention is that the latter involves such coercive

conditions   as    to   constitute   the   functional   equivalent   of   an   arrest.”

Commonwealth v. Gonzalez, 979 A.2d 879, 887 (Pa. Super. 2009) (internal

citation and quotation marks omitted).

      In determining whether a detention is investigative or custodial, courts

are to consider:

      The basis for the detention (the crime suspected and the grounds
      for suspicion); the duration of the detention, the location of the
      detention (public or private); whether the suspect was
      transported against his will (how far, why); and, the investigative
      methods used to confirm or dispel suspicions.

Commonwealth v. Smith, 172 A.3d 26, 32 (Pa. Super. 2017) (citation

omitted).    “The handcuffing of a suspect, by itself, does not convert an

investigative detention into an arrest.”          Id.    In addition, “it must be


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remembered that every [investigative detention] involves a stop and period

of time during which the suspect is not free to go but is subject to the control

of the police officer detaining him.”   Commonwealth v. Rosas, 875 A.2d

341, 348 (Pa. Super. 2005) (citation and quotation marks omitted).

      In determining Appellant was subjected to an investigatory detention

inside the Applebee’s, the trial court opined,

      Based on the fact that [Appellant] was detained for only a brief
      period of time in order to confirm that he was the individual who
      met with the other suspect, that he was detained in a public place,
      that he was only moved a short distance and that the police acted
      quickly to confirm their suspicions with a minimal use of force, this
      Court found that [Appellant’s] initial detention at the scene
      constituted an investigatory detention. The fact that [Appellant]
      was handcuffed inside the restaurant, does not alone convert an
      investigative detention into an arrest.

TCO, 5/29/19 at 5 (citations omitted). We find no error in the trial court’s

conclusion of law that Appellant was subjected to an investigative detention

and not an arrest inside the Applebee’s restaurant.          This conclusion is

consistent with relevant case law providing that a public detention of limited

duration is not an arrest merely because the suspect is placed in handcuffs.

Smith, 172 A.3d at 32. Furthermore, the trial court’s findings are supported

by the record. N.T. 6/20/17 at 41, 64-67, 69-71, 73-75; See Fulton, 179

A.3d at 487; Yim, 195 A.3d at 926.

      Appellant’s third issue is that the trial court erred in determining that

police had reasonable suspicion to conduct an investigatory detention inside

the Applebee’s. The court opined,


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      [t]he information was provided by a known informant. . . The
      informant’s information was based on first-hand knowledge. The
      informant arranged the drug purchase in the presence of police
      and produced photographs of the marijuana and one of the
      vehicles sent to his telephone while the sale was being arranged.
      Police surveillance thereafter confirmed the informant’s
      information in all material respects. Gunnar Derry arrived at the
      time and location that had been prearranged. An Asian male
      driving a BMW that matched the description of the vehicle that
      would be driven by Derry’s supplier also arrived at the time and
      location that had been prearranged. Upon their arrival, the two
      men immediately met up and began circling the parking lot. The
      information provided by the informant and the observations of
      police, taken in conjunction with the reasonable inferences an
      experienced narcotics detective could properly derive from all the
      facts and circumstances known to him, were clearly sufficient to
      allow police to reasonably conclude that criminal activity was
      afoot. [Appellant’s] motion to suppress was therefore properly
      denied.

TCO, 12/20/18 at 6-7. Additionally, the confidential informant further advised

Officer Gansky that Derry’s “source” would also be arriving [at the

Applebee’s]. N.T. 6/20/17 at 8. Officer Gansky understood that to mean that

“Gunner Derry was acting like the middle-man in this drug transaction, and

his source of the marijuana was this Asian man.” Id. Gunnar Derry’s source

was described as an Asian male and would be driving a white-colored BMW

with rims. Id. Officer Gansky was assigned to the special investigations unit

where he investigated narcotics crimes for six years. Id. He assisted and

investigated numerous defendants related to selling drugs and usage of drugs,

attending training specifically on drug trafficking and techniques and

identification put on by the state, local and federal level. Id. at 6. He was




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involved with over 200 cases that involved the use of a confidential informant

and controlled drug buys. Id. 6-7.

      Reasonable suspicion exists only where the officer is able to
      articulate specific observations which, in conjunction with
      reasonable inferences derived from those observations, led him
      reasonably to conclude, in light of his experience, that criminal
      activity was afoot and that the person he stopped was involved in
      that activity. Therefore, the fundamental inquiry of a reviewing
      court must be an objective one, namely, whether the facts
      available to the officer at the moment of intrusion warrant a
      [person] of reasonable caution in the belief that the action taken
      was appropriate.

      [T]he question of whether reasonable suspicion existed at the time
      of an investigatory detention must be answered by examining the
      totality of the circumstances to determine whether there was a
      particularized and objective basis for suspecting the individual
      stopped of criminal activity.

      In making this determination, we must give due weight...to the
      specific reasonable inferences the police officer is entitled to draw
      from the facts in light of his experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination of
      only those facts that clearly indicate criminal conduct. Rather,
      even a combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Commonwealth v. Luczki, 212 A.3d 530, 544-45 (Pa. Super. 2019)

(internal citations and quotation marks omitted).

      “To have reasonable suspicion, police officers need not personally

observe the illegal or suspicious conduct, but may rely upon the information

of third parties, including ‘tips’ from citizens.” Commonwealth v. Barber,

889 A.2d 587, 593 (Pa. Super. 2005).

      When an identified third party provides information to the police,
      we must examine the specificity and reliability of the information
      provided. The information supplied by the informant must be
      specific enough to support reasonable suspicion that criminal

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      activity is occurring. To determine whether the information
      provided is sufficient, we assess the information under the totality
      of the circumstances. The informer's reliability, veracity, and basis
      of knowledge are all relevant factors in this analysis.

Id. at 593-94. “Though not strict requirements, these factors [the veracity of

the informant, the reliability of the informant, and the informant’s basis of

knowledge] help determine how much faith law enforcement can place in the

information they are given.” Commonwealth v. Griffin, 954 A.2d 648, 651

(Pa. Super. 2008) (internal citation omitted).

      First, the veracity of the informant may be partly assessed by
      whether the identity of the informant is known to the police or
      whether the tip is anonymous. An anonymous tip is to be treated
      with particular suspicion, and may not provide a basis for a[n
      investigative detention] in situations in which information from a
      known informant would. A person whose identity is known to the
      police is far less likely to provide false information out of fear of
      reprisal.   Our Supreme Court has explained the distinction,
      saying: “a known informant places himself or herself at risk of
      prosecution for filing a false claim if the tip is untrue, whereas an
      unknown informant faces no such risk.”

      Second, the Pennsylvania Supreme Court has also provided
      guidance on assessing the reliability of the information. If an
      informant is able to provide details about the “future actions not
      ordinarily easily predicted[,]” then the information is considered
      to have a higher degree of reliability. This ability to predict future
      events is relevant because “only a small number of people are
      generally privy to an individual's itinerary, [and] it is reasonable
      for police to believe that a person with access to such information
      is likely to also have access to reliable information about that
      individual's illegal activities.”

      Basis of knowledge, the third factor, refers to how the informant
      obtained the information.     The more intimate the basis of
      knowledge, the more likely the information is to be trustworthy.

      These factors serve as a starting point for our analysis. However,
      in a totality of the circumstances test, other factors may also be
      taken into account to form the basis of a[n investigative

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      detention]. Innocent facts, when taken together, may combine to
      give a police officer reasonable suspicion. Moreover, we must give
      “due weight ... to the specific reasonable inferences [the police
      officer] is entitled to draw from the facts in light of his experience.”

Id. at 651-52.

      We find no error in the trial court’s conclusion of law that police had

reasonable suspicion to conduct an investigative detention of Appellant inside

the Applebee’s restaurant. See also Commonwealth v. Gutierrez, 36 A.3d

1104 (Pa. Super. 2012) (reasonable suspicion found where known informant

gave predictive information that forecasted the movement of the suspect in

question by placing him at a particular time and place, driving a specific

vehicle, and that information was corroborated by police investigation).

Furthermore, the trial court’s factual findings are supported by the record at

the suppression hearing. N.T. 6/20/17 at 15, 17-22, 11-14; Exhibit CS-1, CS-

2; See Fulton, 179 A.3d at 487; Yim, 195 A.3d at 926.

      Appellant’s fourth issue on appeal is that the police were not justified to

frisk and search him inside the Applebee’s.        The trial court stated, “[t]he

question of whether police properly frisked [Appellant] following his initial

detention was not raised in [Appellant’s] pre-trial motion to suppress evidence

or otherwise addressed.” TCO, 12/20/18 at 7. “The only suppression issue

presented to this [c]ourt was the legality of his detention.” Id. After a careful

review of the record, we agree with the trial court. Issues not raised at the

trial court level are waived and cannot be raised for the first time on appeal.




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Pa.R.A.P. 302(a). As Appellant did not raise the issue below, it is waived for

the purposes of appeal. See id.

      Appellant’s fifth issue is that “the trial court abused its discretion in

denying the motion to reconsider without first allowing [Appellant] to offer the

mitigating evidence proffered by counsel in the motion.” Appellant’s Brief at

9. The trial court opined,

      [t]he only evidence proffered in mitigation was that “[a]fter his
      arrest but prior to sentencing, [Appellant] began working a full
      time job.” Post-Sentence Motion, at 5. The decision as to whether
      to schedule a hearing on a defendant’s post-sentence motion lies
      within the discretion of the trial court. Pa.R.Crim.P. 720(B)(2)(b).
      In the instant case, this Court imposed sentences in the standard
      range of the sentencing guidelines despite the existence of several
      aggravating sentencing factors. N.T. 6/25/18 at 47-60. The fact
      that he obtained employment after his arrest was not evidence
      that would impact the sentence imposed under the facts and
      circumstances of this case.

TCO at 7-8. “The judge should . . . determine whether a hearing or argument

on the [post-sentence] motion is required, and if so, shall schedule a date or

dates certain for one or both.”    Pa.R.Crim.P. 720(B)(2)(b).     “There is no

requirement that oral argument be heard on every post-sentence motion.”

Pa.R.Crim.P. 720, Comment. Appellant filed a timely post-sentence motion.

The trial court reviewed the motion, determined a hearing was not required,

and denied the motion. The trial court acted within its power and discretion

in denying the motion without a hearing. Appellant’s suggestion that the trial

court was required to schedule a hearing or argument on his post-sentence

motion lacks merit.


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     Accordingly, Appellant’s judgment of sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/19




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