J-S59012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUSTIN E. TAYLOR,

                            Appellant                  No. 710 EDA 2017


        Appeal from the Judgment of Sentence Entered January 18, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006515-2016


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 01, 2017

        Appellant, Justin E. Taylor, appeals from the judgment of sentence of a

$500 fine, imposed following his conviction for possession of small amount

of marijuana. Appellant asserts that the trial court erred when it denied his

motion to suppress the seized physical evidence.       After careful review, we

affirm.

        The trial court summarized the operative facts of this case as follows:

        On July 5, 2016 Officer Michael Taylor and Officer Garay of the
        Upper Darby Police Department were working as tactical
        narcotics officers patrolling the area of 2020 Garrett Road in
        Upper Darby. N.T.[,] 1/18/17[, at] 5-6. Complaints about
        marijuana usage in the parking garage of this apartment
        complex led the officers to park their vehicle and patrol the area
        on foot. Id. at 7, 23. Officer Taylor testified credibly that as
        they were walking through an alley that led to the parking
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S59012-17


     garage he saw [Appellant] exit the apartment complex with his
     head down holding what the officer believed to be a "marijuana
     cigar" between his fingers. At the same time Officer Taylor
     detected the strong odor of marijuana. Id. at 7-8. [Appellant]
     was, at this point, about twenty feet away from the officers. Id.
     at 9-10. Officer Taylor observed that [Appellant] looked up and
     "cupped" his hand when he saw the police officers, thereby
     concealing the cigar within his hand. Id. at 9-11.

            The officers continued to approach [Appellant] and Officer
     Taylor asked, "What's that?" [Appellant] replied, "it's just a little
     bit of weed." Id. at 12. Officer Taylor asked [Appellant] for the
     cigar and he handed it over. He was then handcuffed and
     arrested. In a search incident to the arrest[,] Officer Taylor
     found a grinder and a bag of marijuana in a backpack that
     [Appellant] was carrying. Id. at 12. Before the inquiry that led
     to [Appellant]'s admission[,] the officers did not ask [Appellant]
     to stop, they did not ask him to come to them and they did not
     impede[] his progress or obstruct his path. Id. at 12.

            Aspects of [Appellant]'s testimony added credibility to
     Officer Taylor's testimony. [Appellant] testified that he was
     surprised when he came upon the officers in the alleyway and
     that he had been walking along with the "marijuana cigar" in his
     hand. When he saw the officers he hid it from view by cupping it
     in his hands. See id. at 38-44. [Appellant] testified that during
     the initial interaction he was not told that he was under arrest
     and that the officers did not threaten or yell at him. Guns were
     not displayed. Id. at 42-43. He maintained that he was
     immediately stopped and was not free to leave. Id. at 41. He
     admitted[,] however, that he was not arrested and searched
     incident to that arrest until after he admitted that he was holding
     "weed." Id. at 42.

Trial Court Opinion (TCO), 4/3/17, at 3-4.

     The Commonwealth charged Appellant with possession of a small

amount of marijuana (PSAM), 35 P.S. 780–113(a)(31), and possession of

drug paraphernalia, 35 P.S. 780–113(a)(32), the latter of which was

subsequently withdrawn.     Appellant filed an omnibus pretrial motion on

November 28, 2016, in which he sought, inter alia, suppression of the seized


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J-S59012-17



contraband.    Appellant filed a supplemental suppression motion on January

9, 2017, and a suppression hearing was held on January 18, 2017.            After

denying the motion to suppress, the trial court immediately proceeded to a

stipulated, non-jury trial, where the court found Appellant guilty of PSAM

and ordered him to pay a $500 fine. No other penalties were imposed.

      Appellant filed a timely notice of appeal, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued is Rule 1925(a) opinion

on April 3, 2017.    Appellant now presents the following questions for our

review:

        I.   Did the lower court err by refusing to suppress the physical
             evidence obtained when the officers did not have
             reasonable suspicion to stop, search or detain Defendant
             without warrant?

       II.   Did the lower court err by refusing to suppress the physical
             evidence obtained pursuant to a search warrant whose
             Affidavit of Probable Cause lacked sufficient information to
             establish probable cause on its face?

      III.   Did the lower court err by refusing to suppress the physical
             evidence where the court considered information outside of
             the affidavit in support of the search warrant to justify a
             finding of probable cause?

Appellant’s Brief at 6.

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

applicable law, and the well-reasoned opinion of the Honorable James P.

Bradley, we conclude Appellant’s claims merit no relief. In its opinion, the

trial court comprehensively discusses and properly disposes of the issues




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J-S59012-17



presented.    See TCO at 4-7.   Accordingly, we affirm based on the trial

court’s Rule 1925(a) opinion.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




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       IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA                                   ti
                             CRIMINAL DIVISION
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    COMMONWEALTH OF PENNSYLVANIA                          CP-23-CR-6515-2016                           �l
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                    JUSTIN TAYLOR
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    A Sheldon Kovach, Esquire, on behalf of the Commonwealth                                           i
    James Lee, Esquire, on behalf of the Defendant /'                                                  !
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                                            OPINION                                                    ij
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    Bradley, J.                                        FILED:                                          �
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          After a stipulated non-jury trial the Defendant, Justin Taylor, was found guilty of          gI
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    possessing a small amount of marijuana, 1an ungraded misdemeanor. A fine of $500.00 wasI
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Imposed at sentencing on January 18, 2017. A timely Notice of Appeal was filed on February I
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17, 2017. Defendant was ordered to file a Concise Statement of Errors Complained of on                 �
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Appeal. Defendant complied and has raised several claims that are related to his pre-trial             I
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motion to suppress. Specifically, Defendant claims:                                                    ll
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          1)      The Commonwealth failed to meet Its burden in the Motion to Suppress;                I
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          2)      The Police Officers lacked reasonable suspicion to stop, search or detain            �

                  Justin Taylor;                                                                       I
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          3)      The Police Officer lacked probable cause to arrest Justin Taylor;                    !l
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1   35 ra.c.S.A, §780· 113(a)(31)(1)
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        4)     The Affidavit of Probable Cause should be stricken due to the fact that it          �3
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               failed to articulate reasonable suspicion or probable cause to stop, search,        �
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               detain and arrest Justin Taylor; and
               TI1e Police Officer's testimony should be limited to the facts articulated in
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               the Affidavit of Probable Cause due to the fact that his testimony grossly          m
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               contracts the facts In the aforementioned document and supplemented                  )j
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               key facts that were clearly meant to embellish his testimony for the                 �
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               purposes of the Motion to Suppress hearing.                                          l
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Concise Statement of Errors Pursuant to Pennsylvania Rules of Appellate Procedure        1925(b). I.�
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        At the January 18, 2017 hearing trial counsel stated his claims with specificity and        II
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particularity: "It is our contention that the officers in this case did not have reasonable          1
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suspicion or probable cause to stop, search, detail, or frisk my client in any shape form, or        I
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fashion" in violation of the Fourth Amendment and the Pennsylvania Constitution.                     I
       When a defendant challenges the admissibility of evidence on Fourth Amendment
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and/or Article I, Section 8 grounds the Commonwealth bears the burden of proving by a                �@
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preponderance of the evidence that the evidence was lawfully seized. � CornmQlliY.ealth .s. �
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Romero, 138 A.3d 21, 28 (Pa. Super. 2016). When considering a motion to suppress the                     �
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court sits as the tactflnder and passes on the credibility of witnesses and the weight to be             I�
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given their testimony.   s_e.e Crunmom.veallh v. Roche,   153 A.3d 1063, 1067 (Pa. Super.                �j
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2017); Qm)monwe<llth v. Galla.gl�r, 896 A.2d 583, 585 (Pa.Super. 2006). The court heard                  I
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testimony from Officer Michael Taylor of the Upper Darby Police Department and from the                  I1
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Defendant, Justin Taylor on January 18, 2017. The credible testimony established the                      �
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following facts.                                                                                          �J
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        On July S, 2016 Officer Michael Taylor and Officer Garay of the Upper Darby Police

 Department were working as tactical narcotics officers patrolling the area of 2020 Garrett

 Road In Upper Darby. N.T. 1/18/17 pp. 5-6. Complaints about marijuana usage In the

 parking garage of this apartment complex led the officers to park their vehicle and patrol

area on foot.   Id,   at 7, 23. Officer Taylor testified credlbly that as they were walking through

an alley that led to the parking garage he saw Defendant exit the apartment complex with

his head down holdlng what the officer believed to be a "marijuana cigar" between his

fingers. At the same time Officer Taylor detected the strong odor of marijuana. Id. at 7-8.

The Defendant was, at this point, about twenty feet away from the officers. Id, at 9-10.

Officer Taylor observed that the Defendant looked up and "cupped" his hand when he saw

the police officers, thereby concealing the cigar within his hand. Id, at 9-11.

       The officers continued to approach the Defendant and Officer Taylor asked, \\What's

that?" Defendant replied, "it's just a little bit of weed." Id.,_ at 12. Officer Taylor asked the

Defendant for the cigar and he handed It over. He was then handcuffed and arrested. In a

search lncldent to the arrest Officer Taylor found a grinder and a bag of marijuana in a

backpack that the Defendant was carrying.       ld..   at 12. Before the inquiry that led to

Defendant's admission the officers did not ask the Defendant to stop, they did not ask him

come to them and they did not impeded his progress or obstruct his path .            .W. at 12.
       Aspects of the Defendant's testimony added credibility to Officer Taylor's testimony.

Defendant testified that he was surprised when he came upon the officers In the alleyway

and that he had been walking along with the "marijuana cigar" In his hand. When he saw

officers he hid it from view by cupping it in his hands. See      W.   at 38- 44. Defendant testified


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that during the inltial interaction he was not told that he was under arrest and that the
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officers did not threaten or yell at him. Guns were not displayed.   I.ct. at 42�43. He maintained
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that he was Immediately stopped and was not free to leave.    Id. at 41. He admitted however]
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that he was not arrested and searched incident to that arrest until after he admitted that he    I
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was holding "weed." Id. at 42.                                                                   ;�
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       Defendant claims that the officers stopped the Defendant without reasonable

suspicion. In Commonwealth v. CQUins, 9�0 A.2d 1041, 10% (Pa. Super. 2008) the Court

explained:

             There are three categories of police Interactions which classify the level of
      intensity in which a police officer Interacts with a citizen, and such are measured
      on a case by case basis. Traditlonally, this Court has recognized three categories
      of encounters between citizens and the police. 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. (citations omitted).

                                              ***
             To determine whether a mere encounter rises to the level of an
     Investigatory detention, we must discern whether, as a matter of law, the police
     conducted a seizure of Um person involved. To decide whether a seizure has
     occurred, a court must consider all the circumstances surrounding the encounter
     to determine whether the demeanor and conduct of the police would have
     communicated to a reasonable person that he or she was not free to decline the

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          officer's request or otherwise terminate the encounter. Thus, the focal point of
          our Inquiry must be whether, considering the circumstances surrounding the
          Incident, a reasonable person innocent of any crime, would have thought he was
          being restrained had he been in the defendant's shoes.


 ld., at 1046·47. The "level of Intrusion Into a person's liberty may change during the
 course of the encounter" and so the record must be carefully scrutinized for "evidence

 of such changes.'' Id. citing Commonwealth v. BJ�!{, 860 A.2d 567, 572 (Pa. Super.

 2004).

          In thls case the Interaction between the officers began as a mere encounter and

 quickly escalated, culminating In an arrest based on probable cause to believe that the

 Defendant possessed marijuana. The officers encountered the Defendant as they

walked down the alleyway on patrol. As their paths met during this "mere encounter"

reasonable suspicion quickly developed. Officer Taylor detected the odor of burning

marijuana and he saw Defendant holding a cigar that he belleved contained marijuana.

This conclusion was based on his training and experience, his observation of the object

and on the Defendant's efforts to conceal the object.� N.T. 1/18/17 pp. 5-6; 9·10.

Officer Taylor then asked the Defendant what he was holding and Defendant's response

provided probable cause to believe that he was unlawfully In possession of marijuana.

       The claim set forth in paraqraph 4 of Defendant's "Concise St.atement of Errors

Pursuant to Pennsylvania Rules of Appellate Procedure 1925(b)" is patently frivolous.

Evidence that ls seized by the police through conduct that is unlawful under the Fourth      j
Amendment or Article I, Section 8 is inadmissible in a criminal prosecution pursuant to      �

the "exclusionary rule." Defendant claims that the affidavit of probable cause that Is

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        attached to the Criminal Complaint should be "stricken" because it fails to articulate

        reasonable suspicion to stop or probable cause to arrest. Defendant seems to conflate

       what would be a challenge to the "four corners" a search warrant with the clalm that

       the Defendant was subject to an unlawful warrantless arrest without probable cause. In

       any case, the remedy would not be to "strike" the affidavit of probable cause attached

       to the Criminal Complaint but to suppress the illegally obtained evidence. Cf,

       Co.rnmonwegJth v. __ flnley, 860 A.2d 132, 135 (Pa. Super. 2004) quoting CQmmonwealth

       v. HanJ111e, 583 A.2d 1245, 1246, Fn. 2 (Pa. Super, 1990); .GQmn1Qnwealth _�.J:lli.Y-e�,

       898 A.2d 1089, 1091 (Pa. Super. 2006); and .Commonwealth v. Dobbins., 934 A.2d

       1170, 1181 (Pa. 2007) citing Comrnonw�lth v. GJb.s.0_11, 638 A.2d 203, 205 (Pa. 1994)C

       ... [Tjhe trial court, ... observed that the proper remedy where evidence has been

      discovered by an Illegal search and/or Incident to an illegal arrest is suppression, not

      dismissal. We aqree.")

             Flnally, the claim that the "Police Officer's testimony should be limited to the

      facts articulated in the Affidavit of Probable Cause," has no basis in the law. Defense

      counsel seized the opportunity to challenge Officer Taylor's credlbillty based on facts

      surrounding the interaction that were not included in the Affidavit of Probable Cause.

      The Court considered the testimony ellclted during defense counsel's thorough cross-

      examination and considered the testimony of the Defendant as well, and assessed the

      credibility of both witnesses. The facts that were found were determined with the

      credibility of the witnesses in mind and are supported by the record. � fl.9.

      (QmD1Q..IBY�nltlL'L.J;1.rnobdy, 823 A.2d 180, 183 (Pa. Super. 2003) ("It is within the


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       suppression court's sole province as factfinder to pass on the credibility of witnesses

       and the weight to be given to their testimony. The suppression court Is free to believe

       all, some or none of the evidence presented at the suppression hearing.°) (citations
       omitted).

             In light of the foregoing it Is respectfully submitted that judgment of sentence
       should be affirmed.

                                                        BY THE COURT:



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