J-S50042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

LERON FRANK HARRIS

                            Appellant                   No. 1451 MDA 2015


             Appeal from the Judgment of Sentence June 26, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004713-2014


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                     FILED JULY 08, 2016

        Appellant, Leron Frank Harris, appeals from the June 26, 2015

aggregate judgment of sentence of two to five years’ imprisonment, imposed

after Appellant was found guilty of one count each of possession with intent

to deliver (PWID), intentional possession of a controlled substance, and

possession of drug paraphernalia.1 After careful review, we affirm.

        The trial court summarized the relevant factual history of this case as

follows.

                   At the hearing held on Appellant’s Suppression
              Motion, the Commonwealth presented the testimony
              of Dauphin County Probation Officer Sean Hamor
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
   35 P.S. §§        780-113(a)(30),       780-113(a)(16),   and   780-113(a)(32),
respectively.
J-S50042-16


          (“PO Hamor”) and Harrisburg City Police Officer
          Nicholas Ishman (“Ofc. Ishman”). At or about 7:53
          p.m. on the evening of August 16, 2014, the Officers
          were partnered on routine patrol as part of the
          Dauphin County Street Crimes Unit (“SCU”). The
          SCU is a team of law enforcement officers consisting
          of police, county probation officers and state parole
          officers who patrol high crime areas and address any
          violent crimes or drug transactions that they
          encounter.

                While on patrol, Ofc. Ishman and PO Hamor
          were driving in an unmarked police van on Woodbine
          Street in Harrisburg when they spotted Appellant
          standing with another mate, later identified as David
          Bucci, in Wharton Alley.     When they turned the
          corner onto Wharton Alley, Ofc. Ishman, who was
          familiar with Appellant, saw money in his left hand
          and observed him put something down the front of
          his pants.      Although he was not Appellant’s
          supervising Probation Officer, PO Hamor was familiar
          with Appellant as he had seen him report to PO
          Anglemeyer. Ofc. Ishman reported to PO Hamor
          what he had seen so, the two decided to make
          contact with Appellant.

                Ofc. Ishman and PO Hamor turned onto
          Wharton Alley without emergency lights or sirens
          activated. Upon exiting the police vehicle, Appellant
          walked up to Ofc. Ishman greeted him and shook his
          hand.     [Ofc.] Ishman testified that he did not
          indicate to Appellant that he wanted to speak to him
          or that Appellant was not free to leave the scene.
          Ofc. Ishman then walked over to Mr. Bucci who was
          standing by his truck that was parked in the alley.

                PO Hamor then exited the car to make a
          routine probation contact with Appellant. Appellant’s
          demeanor was nervous and shaky. PO Hamor gave
          him a pen and paper to write down his name and
          probation officer’s name and he continued to shake
          while performing the task. PO Hamor never told
          Appellant that he was not free to leave; rather, he
          asked for consent to search his person which consent

                                  -2-
J-S50042-16


          was granted. Approximately $200 in cash and a
          cellphone were found during the search. While
          searching him, PO Hamor shook Appellant’s shorts
          which caused a rubber band to fall out which was
          spotted by Ofc. Ishman who was now standing about
          5 feet away. Once he was alerted to the rubber
          band, PO Hamor asked Appellant if he had any
          contraband on him to which he replied no. PO
          Hamor followed up with a request for consent to
          search down his pants; Appellant agreed and
          unbuckled his belt. PO Hamor pulled the waistband
          away from Appellant’s stomach and immediately saw
          a bag of suspected crack cocaine on top of his
          private parts.    Appellant reacted by repeatedly
          saying “I’m done, I’m done.” The substance found in
          Appellant’s pants field tested positive as crack
          cocaine.

                 On August 16, 2014, around 6:00 p.m., David
          Bucci … called Appellant, a person he knew as
          “Ralph”, to make arrangements to buy $20 worth of
          crack cocaine. Mr. Bucci had been in contact with
          Appellant numerous times prior to August 16, 2014,
          to purchase illegal drugs. He indicated that the
          usual practice was for him to call Appellant to see if
          he had cocaine available and, if so, meet on Wharton
          Street. On the date of the incident, the pair was to
          meet at approximately 7:00 p.m. on Wharton Street
          off Woodbine Street. Appellant instructed Bucci to
          call him when he arrived at the meeting spot so he
          could come out of his apartment building and
          consummate the drug transaction.

                Bucci drove to the meeting location with his
          fiancée who waited in his truck. After notifying
          Appellant by phone that he had arrived, Appellant
          met with Bucci on the sidewalk outside of the
          apartment building on Wharton Alley. While making
          the exchange, Bucci and Appellant saw a police
          vehicle turn down the alley which caused them to go
          separate ways – Appellant towards his apartment
          building and Bucci to his truck.




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J-S50042-16


                 After exiting the police vehicle, Ofc. Ishman
          approached Bucci and asked why he was there.
          Bucci lied at first about the reason for being at the
          location; however, he eventually admitted that he
          was there to buy drugs.         Upon request, Bucci
          granted Ofc. Ishman permission to search his person
          but, according to Bucci, since he admitted to the
          reason for meeting with Appellant, the search never
          occurred. At trial, Bucci identified Appellant as the
          person named “Ralph” from whom he would
          purchase crack cocaine.

                 Ofc. Ishman’s and PO Hamor’s testimony was
          essentially the same as the testimony provided
          during the suppression hearing with further
          amplification of some details relating to the
          encounter with Appellant and Bucci.       When Ofc.
          Ishman first spotted Bucci and Appellant, they were
          standing at the rear of the apartment building on
          Wharton Alley.       He stated that the two men
          immediately stopped speaking and Appellant shoved
          something down his pants. After shaking Appellant’s
          hand, he told Ofc. Ishman that the men were talking
          about a job. Ofc. lshman then proceeded to speak
          with Bucci. Initially Bucci told Ishman that the pair
          had been talking about tattoos for his fiancée but,
          eventually he admitted that he was there for a
          cocaine purchase. After Bucci consented to a search
          of his person, Ofc. Ishman found no contraband.

                PO Hamor was informed by Ofc. Ishman that
          he had seen Appellant shove something down his
          pants. PO Hamor made contact with Appellant after
          lshman began speaking with Mr. Bucci. At trial, PO
          Hamor reiterated the details of his encounter with
          Appellant up to the point of the consensual search of
          his pants where the bag of suspected crack cocaine
          was found.

                Ofc. Ishman took custody of the bag and field
          tested the substance. The substance recovered from
          Appellant field tested positive as cocaine. Ishman
          searched Appellant incident to the arrest after finding
          the baggie and recovered a cellphone and $205 in

                                   -4-
J-S50042-16


          the form of two $100 bills and a $5 bill. Ofc. Ishman
          got permission to use Mr. Bucci’s cellphone to call
          the contact number listed as Ralph. Upon placing
          the call from Bucci’s phone, Appellant’s cellphone
          rang.

                Ofc.  Ishman     submitted   the    recovered
          substance to the Pennsylvania State Police (“PSP”)
          Forensic Lab for testing. The parties stipulated to
          the admission of the PSP lab report into evidence.
          The report indicated that the substance recovered
          from Appellant was crack cocaine that weighed 5.76
          grams.

                The Commonwealth also presented the expert
          testimony of Chief John Goshert (“Chief Goshert”) of
          the Dauphin County Criminal Investigation Division
          (“CID”). After testifying to his training, experience
          and background, Chief Goshert was qualified as an
          expert in street level drug trafficking without
          objection.

                Chief Goshert testified that he had reviewed
          the police report and the evidence related to this
          case. Chief Goshert was given a hypothetical upon
          which to determine whether he was able to form an
          opinion regarding whether the cocaine recovered in
          this matter was for personal use or for distribution.
          After considering the hypothetical factual scenario
          and reviewing the PSP lab report, Chief Goshert
          opined that the drugs recovered in this case were
          possessed with the intent to sell or deliver to another
          person.

                 Chief Goshert testified to the many factors
          which led him to his opinion which included his
          experience with significant drug trafficking at that
          location; the fact that the secreted area of the
          location eased the facilitation of a drug transaction;
          and, the actions of the two men were synonymous
          with persons engaging in a drug transaction. Chief
          Goshert found the significant amount of cocaine
          recovered along with the fact that a device by which
          a person may smoke the crack cocaine was not

                                   -5-
J-S50042-16


              found and packaging in which it was found are
              inconsistent with personal use. An additional factor
              considered was the presence of a significant amount
              of cash given Appellant’s lack of employment.

Trial Court Opinion, 1/12/16, at 3-8.

       Appellant filed a motion to suppress on December 23, 2014, for which

the trial court conducted a hearing on January 26, 2015. After post-hearing

briefing, the trial court entered an order on February 27, 2015, denying

Appellant’s motion to suppress.

       Appellant proceeded to a jury trial on June 3, 2015, at the conclusion

of which, the jury found Appellant guilty of intentional possession and drug

paraphernalia counts, but deadlocked on PWID.        Appellant proceeded to a

second jury trial on June 11, 2015, limited to the one count of PWID, at the

conclusion of which, the jury found Appellant guilty of that offense. On June

26, 2015, the trial court imposed an aggregate sentence of two to five years’

imprisonment.2       That same day, Appellant filed a timely post-sentence

motion, which the trial court denied on August 10, 2015.        On August 24,

2015, Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises the following four issues for our review.


____________________________________________
2
  Specifically, the trial court sentenced Appellant to two to five years’
imprisonment for PWID, a concurrent six months’ probation for possession of
drug paraphernalia, and no further penalty on intentional possession.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-S50042-16


            I.     Whether the trial court erred in denying
                   Appellant’s motion to suppress evidence where
                   the police and probation officer lacked
                   reasonable     suspicion     to    conduct     an
                   investigative detention[,] in violation of Article
                   I, Section 8 of the Pennsylvania Constitution
                   and the Fourth Amendment to the United
                   States Constitution?

            II.    Whether the trial court erred in denying
                   Appellant’s motion to suppress evidence where
                   the police and probation officer lacked
                   reasonable suspicion to conduct a probation
                   search, in violation of Article I, Section 8 of the
                   Pennsylvania Constitution and the Fourth
                   Amendment to the United States Constitution?

            III.   Whether the trial court erred in denying
                   Appellant’s post-sentence motion where the
                   verdict was against the weight of the evidence
                   so as to shock one’s sense of justice where the
                   Commonwealth never showed that [] Appellant
                   engaged in acts which constitute the offense of
                   which he was convicted?

            IV.    Whether the Commonwealth failed to present
                   sufficient evidence to sustain Appellant’s
                   convictions where the Commonwealth did not
                   prove that Appellant possessed the drugs with
                   the intent to deliver them?

Appellant’s Brief at 8-9 (some capitalization omitted).

      We elect to address Appellant’s issues in reverse order for ease of

appellate review and analysis. See generally Commonwealth v. Stokes,

38 A.3d 846, 853 (Pa. Super. 2011) (stating, “a successful sufficiency of the

evidence claim warrants discharge on the pertinent crime, [therefore,] we

address those claims first[]”). In his fourth issue, Appellant avers that the

Commonwealth failed to provide sufficient evidence of PWID, specifically that

                                      -7-
J-S50042-16


he possessed the drugs in question with the intent to deliver.      Appellant’s

Brief at 36-38. The Commonwealth counters that through Bucci and Chief

Goshert, their testimony was sufficient to establish the “intent to deliver”

element of the offense. Commonwealth’s Brief at 31-32.

      We begin by noting our well-settled standard of review. “In reviewing

the sufficiency of the evidence, we consider whether the evidence presented

at trial, and all reasonable inferences drawn therefrom, viewed in a light

most favorable to the Commonwealth as the verdict winner, support the

jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson,

91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.

Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its

burden by wholly circumstantial evidence and any doubt about the

defendant’s guilt is to be resolved by the fact finder unless the evidence is so

weak and inconclusive that, as a matter of law, no probability of fact can be

drawn from the combined circumstances.” Commonwealth v. Watley, 81

A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate

court, we must review “the entire record … and all evidence actually

received[.]”   Id. (internal quotation marks and citation omitted).      “[T]he

trier of fact while passing upon the credibility of witnesses and the weight of

the evidence produced is free to believe all, part or none of the evidence.”

Id. (citation omitted). “Because evidentiary sufficiency is a question of law,


                                     -8-
J-S50042-16


our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      In this case, the offense at issue is PWID, the statute governing said

offense provides in relevant part, as follows.

            § 780-113. Prohibited acts; penalties

            (a) The following acts and the causing thereof within
            the Commonwealth are hereby prohibited:

                                       …

            (30) Except as authorized by this act, the
            manufacture, delivery, or possession with intent to
            manufacture or deliver, a controlled substance by a
            person not registered under this act, or a practitioner
            not registered or licensed by the appropriate State
            board, or knowingly creating, delivering or
            possessing with intent to deliver, a counterfeit
            controlled substance.

                                       …

35 P.S. § 780-113(a)(30).      Regarding the intent to deliver element, this

Court has explained that the jury may infer said intent from the following

circumstances.

            “To establish the offense of possession of a
            controlled substance with intent to deliver, the
            Commonwealth must prove beyond a reasonable
            doubt that the defendant possessed a controlled
            substance   with    the intent  to    deliver it.”
            [Commonwealth v. Kirkland, 831 A.2d 607, 611
            (Pa. Super. 2003), appeal denied, 847 A.2d 1280
            (Pa. 2004)] (citing Commonwealth v. Conaway,
            791 A.2d 359 (Pa. Super. 2002); Commonwealth
            v. Aguado, 760 A.2d 1181 (Pa. Super. 2000)).

                                     -9-
J-S50042-16



                  The trier of fact may infer that the defendant
                  intended to deliver a controlled substance from
                  an examination of the facts and circumstances
                  surrounding the case. Factors to consider in
                  determining whether the drugs were possessed
                  with the intent to deliver include the particular
                  method of packaging, the form of the drug,
                  and the behavior of the defendant.

            Kirkland, supra at 611. “Thus, possession with
            intent to deliver can be inferred from the quantity of
            the drugs possessed and other surrounding
            circumstances, such as lack of paraphernalia for
            consumption.”      Commonwealth v. Torres, 617
            A.2d 812, 814 (Pa. Super. 1992), appeal denied, 629
            A.2d 1379 (Pa. 1993).

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (parallel

citations omitted).

      In this case, the Commonwealth presented the testimony of Bucci,

who testified that he “basically [] bought [his] drugs from [Appellant].”

N.T., 6/11/15, at 25.    Bucci described Appellant’s manner of conducting

business in the following terms.

            Q.    When you would purchase these drugs, did you
                  have any routine for getting them?

            A.    Yes.

            Q.    Can you please describe that to the members
                  of the jury?

            A.    Basically I would call, I would ask if [Appellant]
                  was good. He would [say] yes or no. If the
                  answer was yes, I would -- we would proceed
                  to make a time on how long it was going to
                  take me to get there. I would get there, at
                  which point I would call him again, and then he

                                    - 10 -
J-S50042-16


                  would come out and the transaction would be
                  made.

            Q.    Now, you just stated that you would call
                  [Appellant] and ask him if he was good. Can
                  you please describe to the members of the jury
                  what that means?

            A.    Basically did he have drugs on him. Cocaine.

            Q.    Would you always meet in the same location?

            A.    Yes.

Id. at 25-26. Bucci further testified that on the night of August 16, 2014,

he intended to purchase $20.00 worth of crack cocaine, and was in the

middle of making that transaction with Appellant when the police interrupted

them. Id. at 26, 28.

      The Commonwealth also presented the testimony of Chief Goshert,

who testified as an expert in the field of “street-level drug trafficking.” Id.

at 63. Chief Goshert testified that in his expert opinion, the 5.76 grams of

crack cocaine recovered from Appellant’s person was possessed with the

intent to deliver and not for personal use. Id. at 66. Chief Goshert stated

that several factors led him to this conclusion. This included that the area

where Appellant and Bucci were found was “an area that is known for drug

trafficking.” Id. at 67. Also, Chief Goshert stated that the street value of

the 5.76 grams of crack cocaine was “about 450 to 570 dollars [sic] worth”

and it was “not an amount that would be consistent with someone who is

using crack cocaine.” Id. at 67-68. Chief Goshert also noted that Appellant


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J-S50042-16


and Bucci’s behavior of being “in the alley like that huddled up would be

consistent with a drug transaction, with transactional behavior.” Id. at 69.

Chief Goshert also noted that Appellant was not found with any drug

paraphernalia on his person, and that the packaging in which the crack

cocaine was found in was consistent with the sale of the substance, as

opposed to being for personal use. Id. at 72.

      In light of the above evidence, we conclude Appellant is not entitled to

relief. The Commonwealth’s evidence showed that Appellant possessed 5.76

grams of crack cocaine, worth at least $450.00, and regularly sold the same

to Bucci. As Chief Goshert explained, the location and behavior of Bucci and

Appellant, combined with the value of the crack cocaine found, were all

consistent with an intent to deliver. Furthermore, it is undisputed that at the

time the police encountered Appellant, he did not possess any drug

paraphernalia on his person, which would have indicated that the drugs were

for personal consumption. Although, Appellant highlights factors that were

not present, these do not detract from the fact that Chief Goshert and

Bucci’s testimony presented facts from which a jury could conclude that

Appellant possessed the crack cocaine with an intent to deliver. See, e.g.,

Kirkland, supra; Torres, supra.         Based on these considerations, we

conclude the Commonwealth produced sufficient evidence of intent to

sustain the PWID conviction. See Diamond, supra; Jones, supra.




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J-S50042-16


       In his third issue, Appellant avers that the jury’s verdict was against

the weight of the evidence.4 We begin by noting our well-settled standard of

review. “A claim alleging the verdict was against the weight of the evidence

is addressed to the discretion of the trial court.”      Commonwealth v.

Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation omitted).             An

argument that the jury’s verdict was against the weight of the evidence

concedes that the evidence was sufficient to sustain the convictions.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our Supreme Court has

admonished that “[a] new trial should not be granted because of a mere

conflict in the testimony or because the judge on the same facts would have

arrived at a different conclusion.” Commonwealth v. Clay, 64 A.3d 1049,

1055 (Pa. 2013) (citation omitted). Instead, “the trial judge is to determine

that notwithstanding all the facts, certain facts are so clearly of greater

weight that to ignore them or to give them equal weight with all the facts is

to deny justice.” Id. (internal quotation marks and citation omitted). “[A]

new trial should be awarded when the jury’s verdict is so contrary to the

evidence as to shock one’s sense of justice ….” Id.

       As an appellate court, it “is not [our role] to consider the underlying

question of whether the verdict is against the weight of the evidence.”
____________________________________________
4
 We reject the trial court and the Commonwealth’s position that Appellant
has waived this issue for want of specificity.



                                          - 13 -
J-S50042-16


Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted),

cert. denied, Morales v. Pennsylvania, 135 S. Ct. 1548 (2015).             An

argument that the jury’s verdict was against the weight of the evidence

remains “[o]ne of the least assailable reasons for granting … a new trial ….”

Id. (citation omitted). “Thus, only where the facts and inferences disclose a

palpable abuse of discretion will the denial of a motion for a new trial based

on the weight of the evidence be upset on appeal.” Id. (citation omitted;

emphasis in original).

      In this case, Appellant avers the jury’s verdict was against the weight

of the evidence because, in his view, Bucci and Chief Goshert’s testimony

was unreliable.   Appellant argues that Bucci’s testimony was unreliable

because of his crimen falsi, pending charges, and his admission that he lied

to the police.    Appellant’s Brief at 40.     Appellant also assails Bucci’s

testimony for its purported inconsistency with the evidence.        Appellant

maintains that although Bucci stated that he purchased the $20.00 worth of

crack cocaine from Appellant, Bucci was not found with any drugs on him,

nor was Appellant found with any “denominations [of currency] … that would

account for twenty ($20) dollars.” Id. at 41. Appellant also avers that Chief

Goshert’s conclusions were unreliable because he testified that he did not

know whether Appellant had drug paraphernalia in his home 50 feet from

where he met Bucci.      Id.   Appellant also notes that Chief Goshert agreed




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J-S50042-16


that buying crack cocaine in a bulkier quantity was “safer and that the drugs

would not go bad so one could keep them for a long period of time.” Id.

      The trial court concluded that Appellant was not entitled to relief based

on two propositions. First, it concluded the record contained “an abundance

of evidence [that] was presented to prove an intent to deliver the crack

cocaine.”   Trial Court Opinion, 1/12/16, at 18.          Second, the trial court’s

“[r]eview   of   the   transcript   does   not   reveal   such   [an]   amount   of

inconsistencies or a lack of credibility that it would shock the [trial c]ourt’s

sense of justice to learn that the jury resolved any credibility issues in favor

of the Commonwealth.” Id.

      It is axiomatic that the jury is the ultimate finder of fact at trial.

                  [T]he veracity of a particular witness is a
            question which must be answered in reliance on the
            ordinary experiences of life, common knowledge of
            the natural tendencies of human nature, and
            observations of the character and demeanor of the
            witness. As the phenomenon of lying is within the
            ordinary capacity of jurors to assess, the question of
            a witness’s credibility is reserved exclusively for the
            jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).

Likewise, “[t]he trier of fact while passing upon the credibility of witnesses

and the weight of the evidence produced, is free to believe all, part or none

of the evidence.”      Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.

Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).




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J-S50042-16


      In this case, as the trial court pointed out, the jury was free to find

Bucci and Chief Goshert’s trial testimony credible, and resolve any

inconsistencies in said testimony in the Commonwealth’s favor.           See

generally Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014)

(concluding the weight of the evidence claim could not prevail as “the jury

resolved the inconsistencies among the testimonies as it saw fit and reached

a verdict[]”), appeal denied, 102 A.3d 984 (Pa. 2014).     The jury weighed

their testimony and ultimately concluded that Bucci and Chief Goshert were

credible.   As an appellate court, we will not reweigh the evidence and

substitute our judgment for that of the fact-finder.      Commonwealth v.

Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on

these considerations, we conclude the trial court did not commit a palpable

abuse of discretion in deciding the jury’s verdict was not against the weight

of the evidence. See Morales, supra.

      We address Appellant’s remaining two issues together, in which

Appellant argues the trial court erred when it denied his motion to suppress.

We begin by noting our well-settled standard of review.

                  In addressing a challenge to a trial court’s
            denial of a suppression motion, we are limited to
            determining whether the factual findings are
            supported by the record and whether the legal
            conclusions drawn from those facts are correct.
            Since   the    Commonwealth    prevailed  in  the
            suppression court, we may consider only the
            evidence of the Commonwealth and so much of the
            evidence    for  the   defense   as    it remains
            uncontradicted when read in the context of the

                                   - 16 -
J-S50042-16


              record as a whole. Where the record supports the
              factual findings of the trial court, we are bound by
              those facts and may reverse only if the legal
              conclusions drawn therefrom are in error.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014).5            In his first

issue, Appellant argues the police lacked reasonable suspicion to conduct an

investigative detention of Appellant.              Appellant’s Brief at 19.    The

Commonwealth counters that the interaction was a mere encounter, but

even if it was an investigative detention, the police had reasonable

suspicion. Commonwealth’s Brief at 14, 20.

                           The Fourth Amendment of the Federal
                     Constitution provides, “[t]he right of the
                     people to be secure in their persons, houses,
                     papers, and effects, against unreasonable
                     searches and seizures, shall not be violated ….”
                     U.S. Const. amend. IV. Likewise, Article I,
                     Section 8 of the Pennsylvania Constitution
____________________________________________
5
  Our Supreme Court has clarified our scope of review when considering a
challenge to a trial court’s suppression ruling as it relates to “the extent of
the record that the appellate court consults when conducting that review.”
In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). The Court held that such review
is limited to the suppression hearing record, and “it is inappropriate to
consider trial evidence as a matter of course, because it is simply not part of
the suppression record, absent a finding that such evidence was unavailable
during the suppression hearing.” Id. at 1085. Because prior cases held that
a reviewing court could consider the trial record in addition to the
suppression record, our Supreme Court determined that the more limited
scope announced in In re L.J. would apply prospectively to cases where the
suppression hearing occurred after October 30, 2013. Id. at 1088-1089.
Instantly, the subject suppression hearing was held on January 26, 2015.
Accordingly, our scope of review is confined to the suppression hearing
record.



                                          - 17 -
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                  states, “[t]he people shall be secure in their
                  persons, houses, papers and possessions from
                  unreasonable searches and seizures ….” Pa.
                  Const. Art. I, § 8.

            Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
            Super. 2014) (en banc), appeal denied, 117 A.3d
            295 (Pa. 2015).

Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our

cases have recognized three levels of police-citizen interactions.

            The first is a mere encounter, which requires no level
            of suspicion at all. Commonwealth v. Daniel, 999
            A.2d 590, 596 (Pa. Super. 2010). The second level
            is an investigative detention, which must be
            supported by reasonable suspicion. Id. at 596-597.
            Finally, the third level is an arrest or custodial
            detention, which must be supported by probable
            cause. Id. at 597.

Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012). “In

evaluating the level of interaction, courts conduct an objective examination

of the totality of the surrounding circumstances.”        Commonwealth v.

Lyles, 97 A.3d 298, 302 (Pa. 2014) (citation omitted).

            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. 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 whether a
            reasonable person would have felt free to leave or
            otherwise terminate the encounter. What 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.

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Id. at 302-303.

      In the case sub judice, the Commonwealth presented the testimony of

Officer Ishman, who testified that he was patrolling in an unmarked car with

P.O. Hamor. N.T., 1/26/15, at 16-17. Officer Ishman testified that at about

7:53 p.m., he and P.O. Hamor were driving by Wharton Alley, when he saw

Appellant.   Id. at 17, 18.    Officer Ishman observed that Appellant had

money in his left hand, and he was speaking to Bucci. Id. at 18. Officer

Ishman also observed Appellant “put something down the front of his pants.”

Id. at 19. Officer Ishman knew Appellant and identified him to P.O. Hamor.

The two officers got out of the car, which had neither its lights or sirens

activated. Id. at 19. As Officer Ishman got out of the car, Appellant walked

over to him.   Id.   Officer Ishman shook his hand, asked him how he was

doing that evening.    Id.   Appellant responded he was fine and had been

speaking to Bucci “about doing some work.” Id. Officer Ishman then turned

and went to speak to Bucci. Id. at 19-20.

      P.O. Hamor testified at the suppression hearing that after Officer

Ishman and Appellant shook hands and exchanged greetings, he also

introduced himself to Appellant and asked him what he was doing. Id. at 8.

Appellant responded to P.O. Hamor that he was talking to Bucci about a job.

Id.   P.O. Hamor described Appellant as acting nervously, with his hands

shaking. Id. at 9. P.O. Hamor gave Appellant his pen and notepad to write

down his name and his supervising probation officer.      Id.   P.O. Hamor

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explained that even though he already knew this information, he made the

request to illustrate Appellant’s nervousness.      Id.    P.O. Hamor asked

Appellant if he could search his person, to which Appellant said yes. Id. at

10. P.O. Hamor recovered over $200.00 in currency and a mobile phone.

Id. When P.O. Hamor was “shaking out his pants” as part of the search, “a

rubber band fell out on the ground.” Id. Officer Ishman pointed out that it

came out of Appellant’s pants. Id. P.O. Hamor asked Appellant if he “had

anything on him[]” to which Appellant said no.       Id.   P.O. Hamor asked

Appellant for his consent to search his pants. Id. Appellant unbuckled his

belt, and P.O. Hamor pulled Appellant’s pants away from his stomach. P.O.

Hamor observed the crack cocaine on top of Appellant’s genitals. Id.

      Looking at the circumstances, we conclude that at the relevant times,

Appellant was subjected to a mere encounter, and not an investigative

detention. Both the United States Supreme Court and our Supreme Court

have held that a request for identification by police does not itself amount to

a seizure within the meaning of the Fourth Amendment.         Hiibel v. Sixth

Judicial Dist. Ct. of Nev., 542 U.S. 177, 185 (2004); Commonwealth v.

Au, 42 A.3d 1002, 1007 (Pa. 2012).       In addition, our Supreme Court has

instructed that an investigative detention arises when “an encounter

involving a request for identification could rise to a detention when coupled

with circumstances of restraint of liberty, physical force, show of authority,

or some level of coercion beyond the officer’s mere employment, conveying


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a demand for compliance or that there will be tangible consequences from a

refusal.”     Lyles, supra at 304.        Here, the officers were pulled up in an

unmarked vehicle without lights or sirens and were approached initially by

Appellant himself. The officers then exchanged greetings and shook hands

with Appellant and inquired into his name and activities. In our view, there

was no identifiable “restraint of liberty, physical force, show of authority, or

… coercion” that escalated this mere encounter into anything more than just

that.   Id.    Therefore, we conclude that Appellant was not subjected to a

seizure within the meaning of the Fourth Amendment.6 See Walls, supra.

        In his second issue, Appellant claims the police lacked reasonable

suspicion to conduct a “probation search.”           Id. at 28.   However, the trial

court concluded that Appellant consented to the search at issue, as such, no

reasonable suspicion was required.             Trial Court Opinion, 1/12/16, at 13.

Appellant does not challenge the trial court’s consent conclusion except to

say that “[t]he fact that Appellant allegedly consented to th[e] search is

irrelevant as the consent would have occurred after the illegal detention.”
____________________________________________
6
  Although the Commonwealth argued in the trial court that Appellant was
subjected to a mere encounter, it appears the trial court’s overriding
conclusion was that the officers possessed reasonable suspicion. Trial Court
Opinion, 1/12/16, at 12.       It is unclear whether the trial court was
affirmatively rejecting the Commonwealth’s position that this was a mere
encounter, or was assuming that even if it was a seizure, it was
constitutional. Nevertheless, as an appellate court, we “may affirm [the
lower court] for any reason, including such reasons not considered by the
lower court.” Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa.
Super. 2013) (citation omitted).



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Appellant’s Brief at 36.   As we have explained above, Appellant’s Fourth

Amendment rights were not violated.      Appellant does not raise any other

argument challenging the trial court’s consent conclusion; as a result, we

conclude this issue lacks merit.   Therefore, as Appellant’s two suppression

issues fail, the trial court correctly denied Appellant’s motion to suppress.

See Scarborough, supra.

     Based on the foregoing, we conclude all of Appellant’s issues are

devoid of merit.   Accordingly, the trial court’s June 26, 2015 judgment of

sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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