J-S54013-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

MALIK CULMER,

                          Appellant                   No. 2762 EDA 2014


            Appeal from the Judgment of Sentence August 21, 2014
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-3681-2012


BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                           FILED OCTOBER 14, 2015

       Malik Culmer appeals from the judgment of sentence imposed

following his conviction for possession of a controlled substance.            He

specifically challenges the trial court’s denial of his motion to suppress drugs

recovered by the arresting officers.     For the reasons set forth herein, we

affirm.

       The trial court summarized the facts as follows:

              Officer Michael Guinter testified that on January 22, 2012
       at around 11 a.m. he was on duty with his partner, Officer
       Bocelli, in the area of the 700 block of Emily Street in the City of
       Philadelphia. Officer Guinter stated that he, as the driver, and
       his partner, as a passenger, were traveling northbound at less
       than five (5) miles per an hour in an unmarked vehicle and in
       plainclothes on the 200 block of 7th Street. At the corner of 7th
       Street and Emily Street, Officer Guinter observed from ten (10)
       to fifteen (15) yards away, a green Buick half-parked on the
       sidewalk facing the Officer's direction with a black male,

*
    Former Justice specially assigned to the Superior Court.
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      identifying the Defendant, seated in the driver seat. Next to the
      Buick was a smaller silver sedan also facing in the officer's
      direction, with two individuals, a white male driver seated inside
      and a white male standing outside between the two vehicles.

             Officer Guinter stated that he observed the white male,
      with U.S. currency in his hand, lean into the green Buick and
      exchange the currency for small objects from the Defendant.
      Officer Guinter stated that he saw small objects exchanged, but
      could not specify what was passed. He testified that he believed
      this exchange to be a narcotics transaction based on his seven
      (7) years of experience as a police officer working in the Third
      (3d) District for that entire amount of time. Officer Guinter
      stated that he has made approximately three hundred and fifty
      (350) narcotics arrests in the district and that the immediate
      location is known for being a high crime and drug-ridden area.

             After observing the transaction, both Officer Guinter and
      his partner stopped and exited their vehicle.       After Officer
      Guinter identified himself as a police officer, the Defendant
      exited his vehicle and fled westbound on Emily Street by foot.
      Officer Guinter chased the Defendant for about two (2) blocks,
      lost sight of him for twenty (20) seconds when the Defendant
      made a turn onto Snyder Avenue, and found him hiding
      underneath a van on the 700 block of Snyder Avenue.

            Officer Guinter testified that he pulled the Defendant out
      from underneath the vehicle, and upon searching him, recovered
      seven hundred and forty-two dollars ($742) U.S. currency from
      the Defendant's front left pant pocket. After returning to the
      scene of the alleged transaction, Officer Guinter stated that he
      was able to see a clear bag with multiple small pink Ziploc bags
      inside, which he believed to be crack cocaine, on the floor of the
      driver's side from outside of the Defendant's vehicle. Officer
      Guinter recovered the bags which were later identified to contain
      crack cocaine. Both the items and the U.S. currency recovered
      were placed on property receipts. Officer Guinter testified that
      the white males and the silver sedan were no longer on the
      scene when he returned with the Defendant. He further stated
      that his partner had jumped into the unmarked police vehicle to
      follow him upon the Defendant's flight.

Trial Court Opinion, 2/6/15, at 2-4.

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      Appellant was initially charged with possession with intent to deliver

(“PWID”) and possession of a controlled substance.        On April 24, 2013,

Appellant filed an omnibus pre-trial motion which requested, inter alia, that

the trial court suppress physical evidence seized on Appellant’s person and

in his vehicle.    Omnibus Pre-trial Motion, 4/24/13, at 2.       Specifically,

Appellant argued that the items were seized “without a search and seizure

warrant and without the existence of exigent circumstances or probable

cause.”    Id.    The trial court held a suppression hearing and denied

Appellant’s motion on April 30, 2014.     Following a nonjury trial, Appellant

was found guilty of possession of a controlled substance.          The court

sentenced Appellant to one year probation on August 21, 2014.

      Appellant filed a 1925(b) statement of errors complained of on appeal,

and the trial court issued its responsive 1925(a) opinion.        On appeal,

Appellant raises one issue:

      Whether the Trial Court erred in denying Appellant’s Motion to
      Suppress $742.00 and 13 pink packets of crack cocaine where
      the seizing officer, Officer Guinter, lacked probable cause to
      chase Appellant, “pull him out” from under a parked vehicle NT
      21, and search him, recovering $742.00 from the defendant’s
      person and then extending the taint of illegal seizure to the
      search of a vehicle wherein the officer found 13 pink packets of
      cocaine.

Appellant’s brief at 5.

      Appellant’s sole issue challenges the trial court’s denial of his motion

to suppress. Our well-settled standard of review in these matters is “limited



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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.” Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa.Super.

2014) (citation omitted).    In doing so, we consider the Commonwealth's

evidence and any of the defendant’s evidence that remains uncontradicted.

Id. Where this Court agrees that the findings of the suppression court are

supported by the record, “we are bound by these findings and may reverse

only if the court's legal conclusions are erroneous.” Id. Legal conclusions

based on those facts, however, are not binding on this Court and are subject

to plenary review. Id.

      Herein, Appellant argues that Officer Guinter lacked probable cause to

chase Appellant, which led to the recovery of $742 in cash and, eventually,

several Ziploc bags containing crack cocaine. He contends that the officer’s

observation of a single transaction, even coupled with Appellant’s flight, did

not create probable cause for the officer’s subsequent search of Appellant

and the vehicle.   In the alternative, Appellant argues that the trial court’s

contention that reasonable suspicion ripened into probable cause upon flight

is erroneous because Appellant’s flight “was in response to actions of seizure

by the arresting officer” and did not indicate guilt. Appellant’s brief at 11.

      The Commonwealth responds that Appellant’s single issue is waived,

as the issue presented in his 1925(b) statement is incongruous with the one

argued in his brief. It then proceeds to argue that, if reviewable, Appellant

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is entitled to no relief. As the initial interaction between Appellant and police

was a mere encounter, the Commonwealth suggests, Appellant was not

seized.   Even if he was, the experienced Officer Guinter’s observation of

Appellant’s participation in a drug transaction in a high crime area afforded

probable cause for a search and seizure.       Consequently, the suppression

court properly denied Appellant’s motion to suppress the physical evidence.

       We reject the Commonwealth’s waiver argument; nonetheless, we find

Appellant’s argument meritless. For the reasons that follow, we affirm. We

address the characterization of both the initial interaction between Appellant

and Officer Guinter and the ultimate search and seizure of Appellant and the

car.   As this Court has explained, “courts require police to articulate the

basis for their interaction with citizens in [three] increasingly intrusive

situations.” Commonwealth v. Clemens, 66 A.3d 373, 378-79 (Pa.Super.

2013). Our High Court has described those three situations:

       The first category, a mere encounter or request for information,
       does not need to be supported by any level of suspicion, and
       does not carry any official compulsion to stop or respond. The
       second category, an investigative detention, derives from Terry
       v. Ohio[, 392 U.S. 1 (1968),] and its progeny: such a detention
       is lawful if supported by reasonable suspicion because, although
       it subjects a suspect to a stop and a period of detention, it does
       not involve such coercive conditions as to constitute the
       functional equivalent of an arrest. The final category, the arrest
       or custodial detention, must be supported by probable cause.

Id. (citing Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003)).




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      Herein,     upon    witnessing   what   he   believed   to   be   a   narcotics

transaction, Officer Guinter and his partner exited their vehicle and, “[b]y

show of badge and verbally,” identified themselves as police officers, and

walked toward the vehicle. N.T., 4/30/14, at 9, 19. At that point, Appellant

“exited his vehicle and fled[.]” Id. Notably, Officer Guinter did not testify

that he either ordered Appellant to stop prior to flight or compelled him to

answer any inquiries.        This initial interaction was a lawful investigative

detention, which was supported by reasonable suspicion following Officer

Guinter’s observation of Appellant’s transaction.       See Commonwealth v.

Nguyen,     116    A.3d    657   (Pa.Super.   2015)    (acknowledging       that   an

investigative detention must be supported by reasonable suspicion of

unlawful activity).

      Affording relief to Appellant therefore rests upon this Court finding

that, after his flight from the vehicle, Officer Guinter lacked probable cause

to seize Appellant and search his person and the vehicle. We cannot make

such a finding.       “The police have probable cause where the facts and

circumstances within the officer’s knowledge are sufficient to warrant a

person of reasonable caution in the belief that an offense has been or is

being committed.”          Commonwealth v. Caban, 60 A.3d 120, 127

(Pa.Super. 2012) (citations omitted).

      In addition to his testimony regarding his initial interaction with

Appellant, Officer Guinter testified to the following facts, which were not

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contradicted by Appellant.     While slowly patrolling the 700 block of Emily

Street in plainclothes in an unmarked police vehicle, Officer Guinter and his

partner observed from just 30 feet away what he believed to be Appellant’s

participation in a drug transaction.      N.T., 4/30/14, at 6-8.      As noted,

Appellant exited his vehicle and fled when the officers identified themselves.

He was apprehended while hiding under a nearby vehicle. Id. at 9.

        Officer Guinter had been a Philadelphia police officer for seven years,

spending that entire term in the 3rd District, where this transaction occurred.

Id. at 11.      He had made approximately 350 narcotics arrests during his

tenure and knew that the 3rd District “is a very high crime and drug-ridden”

area.     Id.   Based on this experience, he believed he witnessed a drug

transaction.

        While Appellant relies heavily on Commonwealth v. Banks, 658 A.2d

752 (Pa. 1995), and its progeny for the contention that just one transaction

coupled with flight does not support probable cause, such reliance is

misplaced.      Indeed, our High Court’s decision in Commonwealth v.

Thompson, 985 A.2d 928 (Pa. 2009), requires us to review the facts

presented through the lens of the arresting officer’s knowledge and

experience. As in Thompson, the presence herein of factors additional to

Officer   Guinter’s   years   of   knowledge   and   experience,   including   his

observations, Appellant’s flight, and the prevalence of drug crime in the

area, led to the officer’s conclusion that he witnessed a drug transaction.

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Accordingly, we find that the trial court properly relied on the totality of the

circumstances in finding that Officer Guinter had probable cause to seize and

search Appellant’s person.    See Commonwealth v. Ventura, 975 A.2d

1128 (Pa.Super. 2009) (noting that Pennsylvania recognizing a lawful arrest

as authorization to search an arrestee).

      Appellant does not challenge whether Officer Guinter had probable

cause to search his vehicle in the event that his seizure was lawful, alleging

only that any search of the vehicle was “fruit of the poisonous tree.”

Appellant’s brief at 11.   As we find that the officer had probable cause to

search Appellant and further acknowledge that Officer Guinter’s testimony

that the Ziploc bags containing cocaine were in plain view from outside

Appellant’s vehicle went uncontradicted, we need not separately analyze the

legality of any purported search of Appellant’s vehicle.

      We need only briefly address Appellant’s “alternative perspective,”

which is that Appellant fled in response to Officer Guinter’s “actions of

seizure” in approaching the vehicle. Appellant’s brief at 11. This argument

is contingent upon this Court viewing the evidence of flight and its

surrounding circumstances in a light most favorable to Appellant, which

violates our standard of review. See Clemens, supra at 380 (declining to

view evidence in light most favorable to defendant where record supports

finding of suppression court). Accordingly, we will not do so, as the record

herein supports the findings of the suppression court.

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     Having found that Officer Guinter had probable cause to search

Appellant and that additional physical evidence was properly recovered from

his vehicle, we find that the suppression court’s denial of appellant’s motion

to suppress was proper.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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