J-S40006-17

                                  2017 PA Super 264

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ASHANTEE SINGLETON,                        :
                                               :
                      Appellant                :   No. 2384 EDA 2015

              Appeal from the Judgment of Sentence July 17, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014083-2013


BEFORE:      OTT, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                             FILED AUGUST 17, 2017

        Appellant Ashantee Singleton appeals the judgment of sentence

entered by the Court of Common Pleas of Philadelphia County after Appellant

pled guilty to possession with intent to deliver a controlled substance

(PWID).       Appellant argues that the trial court erred in denying his

suppression motion. We affirm.

        On September 19, 2013, at approximately 12:25 a.m., Philadelphia

Police Officers Laseter and Corn were patrolling the area of 1500 Arott Street

in Philadelphia, which is near a major train terminal and is known for a high

level of narcotic activity. Officer Laseter was also aware that there had been

several armed robberies in this area.




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*
    Former Justice specially assigned to the Superior Court.
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      While on patrol, the officers noticed Appellant, who was wearing a

hooded sweatshirt, had his hand in the pocket and appeared to be carrying a

heavy object in that pocket. Out of concern that Appellant had a weapon,

the officers approached Appellant, who had sat down on a ledge.          After

Appellant observed the officers coming toward him, he pulled a black bag

from his sweatshirt and placed it behind him. The bag appeared to contain a

heavy object that the officers believed was a weapon.

      When the officers asked Appellant about the contents of the bag, he

gave no response and simply stared at them. Although Appellant refused to

speak with the officers, Officer Laseter was able to look behind Appellant and

see through the side of the bag that it contained jars with red syrup. Officer

Laseter immediately recognized that the use of small, non-prescription jars

was a common narcotics packaging of codeine syrup. The officers arrested

Appellant for suspicion of PWID.     Upon a search incident to arrest, the

officers discovered Appellant was in possession of thirty-six bags of heroin

and twenty-nine bags of marijuana.

      After Appellant was charged with PWID, he filed a suppression motion,

which the trial court subsequently denied. On February 19, 2015, Appellant

entered a negotiated guilty plea in which he sought to reserve the right to

challenge the trial court’s denial of his suppression motion. The trial court

accepted this conditional plea. On July 17, 2015, the trial court sentenced

Appellant to 11½ to 23 months’ incarceration to be followed by five years’

probation.    Appellant filed this timely appeal and complied with the trial

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court’s direction to file a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

         In his appeal, Appellant claims the trial court erred in denying his

suppression motion.       As noted above, Appellant attempted to enter a

conditional plea agreement in reserving the right to appeal the suppression

order. However, it is well-established that “[a] plea of guilty constitutes a

waiver of all nonjurisdictional defects and defenses” and “waives the right to

challenge anything but the legality of [the] sentence and the validity of [the]

plea.”     Commonwealth v. Andrews, 158 A.3d 1260, 1265 (Pa.Super.

2017) (quoting Commonwealth v. Jones, 593 Pa. 295, 929 A.2d 205, 212

(2007) (citation omitted)).

         While our courts have not specifically addressed the validity of

conditional plea agreements, our courts have proceeded to review the merits

of issues specifically reserved in plea agreements. See Commonwealth v.

Cotto, 562 Pa. 32, 753 A.2d 217 (2000) (providing review of the appellant’s

challenges to the constitutionality of the Juvenile Act, issues which the

appellant sought to reserve the right to appeal in his plea agreement);

Commonwealth v. Zelasny, 635 A.2d 630 (Pa.Super. 1993) (reaching the

merits of the appellant’s suppression challenge which he sought to preserve

in a conditional plea agreement). See also Commonwealth v. Terreforte,

526 Pa. 448, 587 A.2d 309 (1991) (per curiam order) (remanding for the

Superior Court to review the appellant’s Rule 1100 claim after the appellant

claimed that counsel was ineffective for informing him that he could reserve

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this issue for appeal in his plea agreement); Commonwealth v. Thomas,

506 A.2d 420 (Pa.Super. 1986) (allowing the appellant to withdraw his nolo

contendere plea due to his plea counsel’s misconception that the appellant

could condition his plea upon the reservation of his right to appeal the denial

of his pretrial motions). Moreover, in this case, it does not appear that the

Commonwealth objected to the propriety of this appeal.

      As a result, we will reach the merits of Appellant’s suppression issue,

as the trial court accepted Appellant’s conditional agreement reserving the

right to appeal the denial of his suppression motion. When reviewing a trial

court’s denial of a suppression motion, our standard of review is as follows:

      our standard of review in addressing a challenge to a trial court's
      denial of a suppression motion is limited to determining whether
      the factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct.
      [Commonwealth v.] Woodard, [634 Pa. 162,] 129 A.3d [480,]
      498 [(2015)]. We are bound by the suppression court's factual
      findings so long as they are supported by the record; our
      standard of review on questions of law is de novo.
      Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783, 795
      (2009). Where, as here, the defendant is appealing the ruling of
      the suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted.      [Commonwealth v.] Poplawski,
      [634 Pa. 517,] 130 A.3d [697,] 711 [(2015)]. Our scope of
      review of suppression rulings includes only the suppression
      hearing record and excludes evidence elicited at trial. In the
      Interest of L.J., 622 Pa. 126,79 A.3d 1073, 1085 (2013).

Commonwealth v. Yandamuri, ___Pa.___, 159 A.3d 503, 516 (2017).

      The Fourth Amendment to the United States Constitution and Article I,

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from



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unreasonable searches and seizures.       Commonwealth v. Lyles, 626 Pa.

343, 350, 97 A.3d 298, 302 (2014).          Search and seizure jurisprudence

defines three levels of interaction between citizens and police officers and

requires different levels of justification based upon the nature of the

interaction. Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 664

(Pa.Super. 2015).

      These categories include (1) a mere encounter, (2) an
      investigative detention, and (3) custodial detentions. The first of
      these, 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 to respond. The second, an
      “investigative detention” must be supported by reasonable
      suspicion; it subjects a suspect to a stop and a period of
      detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest. Finally, an
      arrest or ‘custodial detention” must be supported by probable
      cause.

Commonwealth v. Baldwin, 147 A.3d 1200, 1202–1203 (Pa.Super. 2016)

(citation omitted).

      In analyzing whether an interaction has escalated from a mere

encounter   to   an   investigative   detention,   we   conduct   an   objective

examination of the totality of the circumstances using the following

standard:

            The totality-of-the-circumstances test is ultimately
      centered on whether the suspect has in some way been
      restrained by physical force or show of coercive authority.
      [Commonwealth v.] Strickler, [563 Pa. 47, 757 A.2d 884,]
      890 [(2000)]. Under this test, no single factor controls the
      ultimate conclusion as to whether a seizure occurred—to guide
      the inquiry, the United States Supreme Court and this Court
      have employed an objective test entailing a determination of

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     whether a reasonable person would have felt free to leave or
     otherwise terminate the encounter. Id. at 890, n. 8 (citation
     omitted). “[W]hat constitutes a restraint on liberty prompting a
     person to conclude that he is not free to ‘leave’ will vary, not
     only with the particular police conduct at issue, but also with the
     setting in which the conduct occurs.” Michigan v. Chesternut,
     486 U.S. 567, 573–74, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)
     (citations omitted).

Lyles, 626 Pa. at 350–51, 97 A.3d at 302–303.

     Moreover, we emphasize that:

     This Court and the United States Supreme Court have repeatedly
     held a seizure does not occur where officers merely approach a
     person in public and question the individual or request to see
     identification. See Hiibel v. Sixth Judicial District Court of
     Nevada, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292
     (2004) (quoting INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct.
     1758, 80 L.Ed.2d 247 (1984)) (officer free to ask for
     identification without implicating Fourth Amendment, and
     requests for identification do not, by themselves, constitute
     seizures); Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct.
     2382, 115 L.Ed.2d 389 (1991) (citation omitted) (even when
     officers lack suspicion, no Fourth Amendment violation where
     they merely approach individuals on street to question them or
     request identification); [Commonwealth v. Au, 615 Pa. 330,
     42 A.3d 1002,] 1007–09 (citations omitted) (same);
     Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698, 701–02
     (2005) (citation omitted) (same).           Officers may request
     identification or question an individual “so long as the officers do
     not convey a message that compliance with their requests is
     required.” Bostick, at 437, 111 S.Ct. 2382. Although police
     may request a person's identification, such individual still
     maintains “‘the right to ignore the police and go about his
     business.’” See In re D.M., 566 Pa. 445, 781 A.2d 1161, 1164–
     65 (2001) (citations omitted) (quoting Illinois v. Wardlow, 528
     U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).

Lyles, 626 Pa. at 351, 97 A.3d at 303.

     Consistent with this precedent, we find the officers did not subject

Appellant to a seizure when they approached him in a public place and asked


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him what was inside his bag. The interaction remained a mere encounter as

the officers were free to ask Appellant questions without implicating the

Fourth Amendment as long as they did not convey a message that Appellant

was required to comply with their request. Our review of the instant case

does not reveal any circumstances that showed the officers’ request for

information was accompanied by a mandate to comply, physical restraint, or

any show of authority.          The officers merely asked Appellant about the

contents of his bag.       We agree with the trial court’s conclusion that the

interaction remained a mere encounter upon their inquiry to Appellant.1

       As previously noted, Officer Laseter was concerned that Appellant had

a weapon because he had observed Appellant quickly remove a black bag

containing a heavy object from his sweatshirt pocket and place it behind him

as the officers approached. When the officers asked Appellant what was in

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1
  Appellant’s argument that the interaction escalated from a mere encounter
to an investigative detention was partially based on the subjective beliefs of
the officers on whether Appellant was free to leave. We note that in
conducting an objective review of the totality of the circumstances, an
“officer's subjective beliefs are largely immaterial to the consideration of
whether a reasonable person would feel free to leave absent some objective
manifestation or demonstration of that belief during the encounter.”
Commonwealth v. Lyles, 54 A.3d 76, 83 (Pa.Super. 2012). See also
Commonwealth v. Sherwood, 603 Pa. 92, 118, 982 A.2d 483, 499 (2009)
(using an objective standard in reviewing the totality of the circumstances to
determine whether the defendant was subjected to a custodial interrogation,
giving “due consideration given to the reasonable impression conveyed to
the person interrogated rather than the strictly subjective view of the
troopers or the person being seized”).




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his bag, Appellant silently stared at them with no response.        The officers

encountered Appellant in the middle of the night in a high crime area where

several armed robberies had occurred.

      Moreover, from her point of view, Officer Laseter was able to look

behind Appellant and see the contents of the bag through an opening in the

side of the bag.    Officer Laseter testified that she could see small, non-

prescription jars filled with red syrup, which she immediately recognized as a

common narcotics packaging of codeine syrup. When directly asked about

how exactly she investigated Appellant’s bag, Officer Laseter testified that “it

was behind him, so I looked at it and you could see, like, in the side. Like,

as soon as I went to touch it, I could see the jars with the red syrup inside.”

N.T. 8/12/14, at 12.    Based on this testimony, the trial court found that

“Officer Laseter did not have to manipulate or open the bag to see inside.”

Trial Court Opinion, 8/3/16, at 5.

      As this finding is supported by the record, we agree with the trial

court’s conclusion that the officers did not detain Appellant or frisk his bag in

observing the suspected controlled substances in his bag.         At that point,

Appellant’s possession of suspected narcotics gave the officers probable

cause to arrest him and conduct a search incident to arrest which led to the

lawful seizure of additional contraband.

      Accordingly, we conclude that the trial court did not err in denying

Appellant’s suppression motion and affirm his judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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