J-S73005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BRIAN LUCZKI                               :
                                               :
                       Appellant               :       No. 93 WDA 2018

           Appeal from the Judgment of Sentence December 18, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003552-2017


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED MARCH 8, 2019

        Appellant, Brian Luczki, appeals from the amended judgment of

sentence entered in the Allegheny County Court of Common Pleas, following

his bench trial conviction for possession of a controlled substance.1 We affirm.

        In its opinion, the trial court accurately sets forth the relevant facts of

this case. Therefore, we have no reason to restate them. Procedurally, we

add Appellant filed a motion to suppress on August 25, 2017. On December

15, 2017, the court conducted a suppression hearing and denied Appellant’s

suppression motion. That same day, Appellant proceeded to a bench trial,

following which the court convicted Appellant of one count of possession of a

controlled substance. On December 15, 2017, the court initially sentenced


____________________________________________


1   35 P.S. § 780-113(a)(16).
J-S73005-18


Appellant, but on December 18, 2017, the court entered a corrected

sentencing order and imposed three (3) to six (6) months’ incarceration, plus

sixteen (16) months’ probation. Appellant filed a timely notice of appeal on

January 12, 2018. The court ordered Appellant on January 16, 2018, to file a

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b);

Appellant timely complied on February 15, 2018.

      Appellant raises one issue for our review:

         DID THE TRIAL COURT ERR IN DETERMINING THAT
         [APPELLANT]’S RIGHTS UNDER THE FOURTH AND
         FOURTEENTH AMENDMENTS TO THE UNITED STATES
         CONSTITUTION, AS WELL AS ARTICLE ONE, SECTION
         EIGHT OF THE PENNSYLVANIA CONSTITUTION, WERE NOT
         VIOLATED WHEN [APPELLANT] WAS SUBJECTED TO A
         SEIZURE—AN ILLEGAL INVESTIGATORY DETENTION, NOT
         A MERE ENCOUNTER—WHEN TWO POLICE OFFICERS WHO
         HAD IDENTIFIED THEMSELVES AS SUCH APPROACHED HIM
         WITH THEIR BADGES DISPLAYED AND ONE STATED, “I
         NEED TO SPEAK WITH YOU”?

(Appellant’s Brief at 4).

      Our standard of review regarding the denial of a motion to suppress

evidence is as follows:

         [An appellate court’s] standard of review in addressing a
         challenge to the denial of a suppression motion is limited to
         determining 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, [the appellate court is] bound by
         [those] findings and may reverse only if the court’s legal

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J-S73005-18


         conclusions are erroneous.       Where…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 [the] 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 [trial court
         are] subject to our plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012), appeal

denied, 618 Pa. 684, 57 A.3d 68 (2012).

      Contacts between the police and citizenry fall within three general

classifications:

         The first [level of interaction] is 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 a 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. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012).

         An investigative detention, unlike a mere encounter,
         constitutes a seizure of a person and thus activates the
         protections of Article 1, Section 8 of the Pennsylvania
         Constitution. To institute an investigative detention, an
         officer must have at least a reasonable suspicion that
         criminal activity is afoot. Reasonable suspicion requires a
         finding that based on the available facts, a person of
         reasonable caution would believe the intrusion was
         appropriate.

                                  *    *    *

         Reasonable suspicion exists only where the officer is able to
         articulate specific observations which, in conjunction with


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          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.

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal

citations omitted).

        “[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.”

Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000)

(quoting Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa.Super. 2000),

appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).

          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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal

denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation

marks omitted).       “[W]hether the defendant was located in a high crime

area…supports the existence of reasonable suspicion.” Commonwealth v.



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Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied, 605

Pa. 694, 990 A.2d 727 (2010) (internal citations omitted).

      “Probable cause is made out when the facts and circumstances which

are within the knowledge of the officer at the time of the arrest, and of which

he has reasonably trustworthy information, are sufficient to warrant a

[person] of reasonable caution in the belief that the suspect has committed or

is committing a crime.” Commonwealth v. Thompson, 604 Pa. 198, 203,

985 A.2d 928, 931 (2009) (internal quotation marks omitted).

         The question we ask is not whether the officer’s belief was
         correct or more likely true than false. Rather, we require
         only a probability, and not a prima facie showing, of
         criminal activity. In determining whether probable cause
         exists, we apply a totality of the circumstances test.

Id. (emphasis in original) (internal citations and quotation marks omitted).

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

applicable law, and the well-reasoned opinion of the Honorable Kelly E. Bigley,

we conclude Appellant’s issue merits no relief.       The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed April 27, 2018, at 2-4) (finding: evidence

established Officer Luffey asked to speak to Appellant after officer’s

observations led him to conclude Appellant might have purchased narcotics;

Appellant immediately turned away and pulled stamp bag out of his pocket;

Officer Luffey’s initial interaction and request to speak with Appellant was

mere encounter; Officer Luffey’s observation of stamp bag in Appellant’s hand


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J-S73005-18


constituted probable cause to arrest Appellant for possession of controlled

substance; based on foregoing, court denied suppression motion). The record

supports the trial court’s rationale. Accordingly, we affirm on the basis of the

trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2019




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          IN THE COURT OF.COMMON PLEAS OF ALLEGHENY
                                 CRIMINAL DIVISION                                                   "            II       I




      COMMONWEALTH OF PENNSYLVANIA
                                                                                   CC No. 2017-03552
                           v.                                                      93 WDA 2018

      BRIAN LUCZKI         I                                                       Judge: Kelly Bigley
                                Defendant


                                                   OPINION

                The defendant appeals from a verdict and judgment of sentence entered

      December 15, 2017, at the conclusion of a suppression hearing and stipulated non-jury

      trial before this court. The defendant was found guilty of Possession of a Controlled

      Substance. The defendant was sentenced to three (3) to six (6) months in the Allegheny

      County Jail and sixteen (16) months probation1• No Post-Sentence Motions were filed

      and this appeal followed.

                The defendant raises one issue on appeal;

                 1. This Honorable Court erred when it denied Mr. Luczki's Motion to Suppress
                    Evidence. The seizure and subsequent search of Mr. Luczki's person were
                    illegal and conducted in violation of Mr. Luczki's rights under the Fourth and
                    Fourteenth Amendments to the United States Constitution, as well as Article
                    One, Section Eight of the Pennsylvania Constitution, for the following reasons

                        a. Mr. Luczki was subjected to a seizure where two police officers who
                           identified themselves as such approached him with their badges
                           displayed and one stated "I need to speak with you." This seizure was
                           not supported by reasonable suspicion that Mr. Luczki was engaged in
                           criminal activity or by probable cause to arrest him.

      1
          The original Sentencing Order did not impose the probationary period imposed and a Corrected Order
      was entered.

                                                            1
                   b. The police officer's subsequent order to Mr. Luczki to "open up his hand"
                      was a search of Mr. Luczki's person. This search was conducted without
                      a warrant and in the absence of any delineated exception to the warrant
                      requirement.

          2. The sentence imposed is illegal where this Honorable Court's order of sentence
             fails to specify the length of the term during which Mr,. Luczki is to be
             supervised on probation.


          In this case, the evidence presented at trial established that on November 29,

2016, Officer William Luffey of the Allegheny County Port Authority Police was working

with other police officers as part of the District Attorney task force targeting the sale of

illegal narcotics (DAN ET). Officers were in the area of Federal and Henderson Streets

on the North Side of Pittsburgh due to complaints of drug sales. [T.T. 4]2 The Sandusky

Court housing project is adjacent to the area and the task force had made in excess of

thirty drug arrests in the area that month. [T.T. 6]

          Officer Luffey first observed the defendant walking away from the officers and

toward the Sandusky Court Housing Project. The defendant was with an individual

known to Luffey as he had arrested that individual on drug charges on five prior

occasions. They walked toward Sandusky Court and out of the view of the officers.

Approximately 14 minutes later the two individuals were observed coming back from the

area of Sandusky Court walking toward the officers. Officer Luffey testified that based

on his training and experience, and the observations he made, he believed that the

individuals had purchased illegal narcotics. Officer Luffey and Sgt. Wagner who were in

plain clothes, but wearing their badges around their necks, waited until the individuals




2
    T.T. refers to the Trial Transcript of December 15, 2017, followed by the page number(s).


                                                      2
were a few feet away and announced themselves as police officers. Officer Luffey

stated "I need to speak to you", and both the defendant and the other individual turned

and started to walk away. The defendant started to pulled his hand out of his front

pocket and Officer Luffey could clearly see a stamp bag in his hand. After asking the

defendant to open his hand he observed three stamp bags marked "no pain" in his

hand. [ T.T. 10] The defendant was then placed under arrest for possession of a

controlled substance. ·

       In evaluating the level of interaction between police and a citizen, courts conduct

an objective examination of the totality of the surrounding circumstances.

Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000). In the instant case the

evidence established that Officer Luffey asked if he could speak with the defendant after

his observations led him to conclude that the defendant may have purchased narcotics.

The defendant immediately turned away and pulled a stamp bag out of his pocket. At

that point Officer Luffey had probable cause to arrest the defendant for possession of a

controlled substance. This court found that the interaction and request to speak with

the defendant was a mere encounter that did not require reasonable suspicion or

probable cause. Officer Luffey was adamant that he clearly observed a stamp bag of

heroin in the defendant's hand before he closed his fist. He had three stamp bags of

heroin in his hand. Accordingly, this court denied the defendant's Motion to Suppress.




                                             3
        By reason of the foregoing, the verdict and judgment of sentence should be

affirmed.




                                                By the Court,


         �
Date:                   UJl8


Copies to:

Stephanie M. Noel, Esq.                  Michael Streilly, Esq
400 County Office Building               401 Courthouse
542 Forbes Ave                           436 Grants Street
Pittsburgh, PA 15219                     Pittsburgh, PA 15219




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