J-S79022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARON BROWN

                            Appellant                 No. 3069 EDA 2015


             Appeal from the Judgment of Sentence October 6, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004848-2014


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED FEBRUARY 06, 2017

       Daron Brown appeals from the October 6, 2015 judgment of sentence

entered by the Philadelphia County Court of Common Pleas following his

convictions for possession of cocaine with intent to deliver (“PWID”) and

knowingly or intentionally possessing a controlled substance.1 We affirm.

       The trial court2 summarized the relevant factual history of this matter

as follows:

               On February 20, 2014, . . . Daron Brown[] was arrested
            and was charged with [PWID] and knowingly or
            intentionally possessing a controlled substance for events
____________________________________________


       1
           35 Pa.C.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
       2
        The Honorable Jeffrey P. Minehart authored the trial court’s
Pennsylvania Rule of Appellate Procedure 1925(a) opinion because the
Honorable Vincent N. Melchiorre, who presided over Brown’s case, was no
longer on the bench.
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           which occurred at or near the 5600 block of Market Street
           in the City and County of Philadelphia.

                                          ***

              [At a suppression hearing held on July 2, 2015,] Officer
           Maurici Acevedo testified that on February 20, 201[4], at
           approximately 1:30 a.m., he and his partner, Officer
           Nguyen (first name not given), were on routine patrol
           traveling westbound on Market Street when they observed
           [Brown] and what appeared to be two male juveniles.
           Officer Nguyen pulled the vehicle over and as Officer
           Acevedo was exiting the patrol vehicle he told the three
           males to “Stop.”[3] The two males that appeared to be
           juveniles ran westbound and [Brown] ran eastbound
           toward 56th Street. Officer Acevedo pursued [Brown] on
           foot and observed him reach into the front pocket of his
           hoodie with his right hand, take out a clear baggie, and
           throw it to the ground. At the corner of 56th and Market
           Streets, [Brown] slipped on ice and fell backwards. Officer
           Acevedo apprehended [Brown] after which [he] retrieved
           the baggie he had observed [Brown] throw. Eleven (11)
           orange-tinted Ziploc bags and thirty-five (35) red-tinted
           bags were recovered from the baggie. A search incident to
           arrest recovered One Hundred Seventy-Two ($172.00)
           Dollars. (N.T. 7/2/15, pp. 4-9). According to Officer
           Acevedo, he and his partner stopped because he thought
           the two males were juveniles and it was one-thirty in the
           morning (almost 2 hours past curfew). He also stated that
           56th and Market is a well known drug corner in the 19th
           District and there have been some shootings.         (N.T.
           7/2/15, pp. 10-12). The Motion to Suppress was denied.

              A waiver trial was held before Judge Melchiorre on July
           28, 2015 wherein Officer Acevedo testified as he did at the
           suppression hearing on July 2, 2015. (N.T. 7/28/15, pp.
           9-12). After a stipulation by and between counsel that
____________________________________________


       3
        Officer Acevedo testified that he was going to stop the group to
inquire whether Brown was the guardian or parent of the two juveniles, as
1:30 a.m. was past the Philadelphia city curfew for minors. N.T., 7/2/15, at
10.



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       Police Officer Tony Morrone is an expert in the field of
       narcotics packaging and delivery, Officer Morrone testified
       that he was of the opinion that the drugs seized from
       [Brown] were possessed with the intent to deliver and not
       for personal use. He based this opinion on the way the
       drugs were packaged (as single, $5.00 packets) and by the
       way they were discarded. Additionally, Officer Morrone
       stated that [Brown] was not in possession of any drug
       paraphernalia. Officer Morrone opined that if these drugs
       were for personal use as argued by [Brown], they would
       have been packaged in bulk as opposed to the individual
       packaging found in the discarded baggie and [Brown]
       would have had some type of paraphernalia. Moreover,
       [Brown] would have to be a heavy cocaine user to have
       purchased forty-six (46) individual packets of crack-
       cocaine instead [of] bulk amount.4 (N.T. 7/28/15, pp. 14-
       23).
          4
            Officer Morrone also testified that the packets (3.5
          grams) recovered from [Brown] had a value of
          approximately $230.00; that if [Brown] was a heavy
          user, monetary-wise, he could have purchased 3.5
          grams of crack-cocaine anywhere in the city for
          [between] $120.00 and $140.00. (N.T. 7/28/15, pp.
          22-23).

          On behalf of [Brown], his sister, Dorsea Jameson,
       testified that she had given [Brown] about $60.00 (in
       small bills from her bartending tip money) the day before
       he was arrested in this matter. (N.T. 7/28/15, pp. 24-25).
       On cross-examination, Ms. Jameson conceded that she
       would not have given her brother money for drugs and she
       was not aware of any prior drug use. (N.T. 7/28/15, p.
       26).

          Tina Zimmett, [Brown’s] mother, testified that she had
       given her son $60.00 sometime that week to paint her
       bathroom since he was not working at the time. (N.T.
       7/28/15, pp. 27-28). On cross-examination, Ms. Zimmett
       stated that she also would not have given her son money
       for drugs and was not aware of any prior drug use. (N.T.
       7/28/15, pp. 28-29).

         Next, David Neff was accepted as an expert in drug
       analysis, distribution, and use. (N.T. 7/28/15, pp. 29-35).


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J-S79022-16


         It was Mr. Neff’s opinion, based on the totality of the
         circumstances and to a reasonable degree of professional
         certainty that the drugs in [Brown’s] possession were for
         personal use and not for distribution despite their
         packaging. He based this opinion in part on the fact that
         [Brown] was walking with two other individuals and not
         standing on a corner; that the baggie was knotted thereby
         preventing easy access to the drugs; Officer Acevedo was
         on routine patrol, he was not on a stakeout; [Brown] was
         not a target of any investigation; and there was no radio
         calls about drug sales on the street prior to the officers
         pulling over. While Mr. Neff agreed that the amount of
         drugs possessed by [Brown] was more than what an
         average person would have at one time, he opined that a
         person with a significant drug habit and economic
         wherewithal could use that amount of crack-cocaine in one
         day. (N.T. 7/28/15, pp. 35-38). [Brown] did not testify.

Opinion, 3/4/16, at 1-4 (some footnotes omitted).

      Following trial, Brown was found guilty of both charges. On October 6,

2015, the trial court sentenced Brown to 2 to 4 years’ incarceration followed

by 3 years’ probation for the PWID conviction, with no further sentence for

the conviction for knowingly or intentionally possessing a controlled

substance. On October 16, 2015, Brown filed a timely notice of appeal.

      Brown raises the following issues on appeal:

         1. Did not the lower court erroneously deny appellant’s
         motion to suppress physical evidence where police seized
         appellant without reasonable suspicion or probable cause,
         and where appellant's flight and the recovery of illegal
         drugs and money was the fruit of an unlawful stop?

         2. Was not the evidence insufficient to sustain appellant’s
         conviction for possession with the intent to deliver a
         controlled substance where appellant never delivered a
         controlled substance nor was there sufficient evidence of
         any intent to do so?

Brown’s Br. at 4.


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J-S79022-16


     We first address Brown’s claim that the trial court erroneously denied

his motion to suppress physical evidence recovered by the police, including a

baggie containing 46 packets of cocaine and $172.00 in cash. Brown argues

that the police “did not have reasonable suspicion to stop or probable cause

to arrest” him. Id. at 10. Brown further argues that the trial court erred in

finding that he was subject to a “mere encounter” with police, and alleges

that he was in fact subject to “a seizure pursuant to the Fourth and

Fourteenth Amendments of the United States Constitution and Article 1,

Section 8 of the Pennsylvania Constitution.” Id. at 11.

     In reviewing the denial of a suppression motion, we must determine:

        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, we are bound by these findings
        and may reverse only if the court’s legal conclusions are
        erroneous.       Where, as here, 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 an 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 courts
        below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted).




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      The law recognizes three levels of interaction between police officers

and citizens: (1) a mere encounter; (2) an investigative detention; and (3) a

custodial detention.      See Commonwealth v. Downey, 39 A.3d 401, 405

(Pa.Super. 2012). This Court has previously discussed the requirements for

police at each level:

            The first of these [interactions] 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.

Id. (citation omitted). We analyze whether a seizure has occurred pursuant

to the following standard:

            To guide the crucial inquiry as to whether or not a
            seizure has been effected, the United States
            Supreme Court has devised an objective test
            entailing a determination of whether, in view of all
            surrounding circumstances, a reasonable person
            would have believed that he was free to leave. In
            evaluating the circumstances, the focus is directed
            toward whether, by means of physical force or show
            of authority, the citizen-subject’s movement has in
            some way been restrained. In making this
            determination, courts must apply the totality-of-the-
            circumstances approach, with no single factor
            dictating the ultimate conclusion as to whether a
            seizure has occurred.

Id. (citation omitted).




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       Brown argues that he was seized when the officers pulled over their

patrol car, got out, and told him (and his companions) to “stop” as he was

walking down the street. Brown’s Br. at 12. He claims that Officer Acevedo

issued a “clear directive” and a “clear show of force” such that from “the

totality of the circumstances, it is apparent that a reasonable person would

not feel free to ignore the officer’s command to ‘stop’ in this situation.” Id.

at 13-14.    Brown also contends that the fact the interaction occurred in a

high-crime area late at night made it reasonable for him to believe a seizure

was taking place. Id. at 14.

       We are guided here by this Court’s decision in Commonwealth v.

Brown, 904 A.2d 925 (Pa.Super. 2006), which involved facts quite similar

to those we address here. In that case, the appellant challenged the trial

court’s denial of a motion to suppress a bag of cocaine recovered following a

police chase. The appellant fled after a police officer, who had observed him

walking down an alley, said “stop.”4 Id. at 929. Although the officer had

been patrolling the area for drugs in an unmarked car and was not in

uniform, testimony established that at the time he told the appellant to stop,

he was clearly identified as a police officer.   Id.   After apprehending the

appellant following a chase, the police retraced his path and recovered a
____________________________________________


       4
        The officer testified that he “thought Appellant resembled somebody
that had an active county warrant, and he intended to conduct a pedestrian
stop to inquire about [the appellant’s] identity and what he was doing in the
area at that time of the evening.” Brown, 904 A.2d at 929.



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J-S79022-16


clear plastic bag containing cocaine. Id. We rejected the premise that the

mere use of the word “stop” amounted to a seizure by agreeing with the trial

court’s observation that “there was no pre-flight seizure.” Id. at 930. The

ultimate seizure of drugs discarded during the chase was not subject to

suppression because the appellant’s unprovoked flight in a high crime area

established a reasonable suspicion to believe that criminal activity was afoot

to allow for a Terry5 stop. Id. at 930-31.

       Our Supreme Court has recognized the challenges presented by the

“free to leave” test for determining whether a particular police-citizen

encounter rises to the level of an investigative detention:

                [M]ost “responsible” members of society would never
            feel free to ignore police or terminate any encounter with
            them, regardless of context, whether their reason be
            morals, civility, or respect for the badge. However, the
            mere fact of being a police officer does not constitute
            coercion that rises to the level of constitutional
            impropriety.      Regardless of a responsible person’s
            perception, it is conduct and circumstance beyond the
            officer’s inherent authority that converts an interaction into
            more than a mere encounter.

                Although the reasonable person test may not always be
            empirically satisfying, the standard, which evolved from
            cases following Terry v. Ohio[. . .], was designed as a
            means to determine whether a seizure occurred, in
            circumstances apart from those involving physical
            restraint. See United States v. Mendenhall, 446 U.S.
            544, 553–54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)
            (citations omitted); [Michigan v. Chesternut, 486 U.S.
____________________________________________


       5
           Terry v. Ohio, 391 U.S. 1 (1968).




                                           -8-
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         567,] 573–74, 108 S.Ct. 1975 [(1988)] (citations
         omitted); [INS v. Delgado, 466 U.S. 210,] 215–17, 104
         S.Ct. 1758 [(1984)] (citations omitted). The test to
         determine whether a seizure occurred has nonetheless
         remained the same, and the ultimate inquiry hinges on
         whether an officer “has in some way restrained the liberty
         of a citizen[.]” Terry, at 19 n. 16[. . .].

Commonwealth v. Lyles, 97 A.3d 298, 306 n.4 (Pa. 2014).

      Here, the suppression court found that Brown was not subject to a

seizure because Officer Acevedo only made “a simple request to stop,” which

left Brown (and the others) “free to continue walking away.”      N.T., 7/2/15,

at 17; see In re D.M., 781 A.2d 1161, 1162, 1165 (Pa.Super. 2001)

(addressing a situation in which the officer “told appellant to come over,”

stating that “the police may approach anyone in a public place to talk to him,

without any level of suspicion, but the citizen has a right to ignore the police

and go about his business. . . . In the instant case, at the time the police

initially approached the appellant it was unclear whether the police intended

to do anything other than talk to him.     Thus, the initial approach did not

need to be justified by any level of suspicion. . . .”) (internal quotations and

citations omitted). The suppression court reasonably found that, under the

totality of the circumstances and despite the use of the word “stop,” there

was not the sort of “conduct and circumstance beyond the officer’s inherent




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authority” that converted Officer Acevedo’s initial approach to Brown and his

companions into more than a mere encounter.6

       Even if Officer Acevedo’s initial actions rose to the level of an

investigative detention, the stop was supported by reasonable suspicion.7

As Officer Acevedo testified, the two males he observed with Brown

appeared to be juveniles, and it was past curfew at the time.8 Accordingly,

he had reasonable suspicion to conduct an investigative detention to

determine whether the juveniles violated curfew.           Furthermore, Officer

Acevedo was free to question Brown to determine whether he was the

juveniles’ parent or guardian.         Because the curfew does not apply if the

“minor is accompanied by a parent,” 10 Phila. Code § 10-303, Brown’s

relationship to the juveniles was essential to determining whether a curfew

violation had taken place. For all the foregoing reasons, we conclude that

the trial court properly denied Brown’s motion to suppress.


____________________________________________


       6
        The court further found that Brown’s subsequent “unprovoked flight
[was] indicia for reasonable suspicion” and the police were free to pursue
him. N.T., 7/2/15, at 17. We note that Brown does not challenge this
conclusion, which is fully supported by the record.
       7
       “We are not bound by the rationale of the trial court, and may affirm
on any basis.” In re Jacobs, 15 A.3d 509, 509 n.1 (Pa.Super. 2011).
       8
        The Philadelphia curfew ordinance prohibits minors from being in a
public place on a weekday during the school year from 9:00 p.m. (if under
13 years old) or 10:30 p.m. (if aged 13 to 17 years old) to 6:00 a.m. the
following day. 10 Phila. Code § 10-303.



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     Next, we address Brown’s claim that the Commonwealth failed to

present sufficient evidence to support his PWID conviction.   Brown argues

that: he was not engaging in any drug sales or transactions when he was

arrested; the drugs found on him could have been for personal use; and

there was insufficient evidence that he possessed the cocaine with intent to

deliver. Brown’s Br. at 16-17.

     We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether viewing all the evidence admitted at trial in the

light most favorable to the verdict winner, there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond a

reasonable doubt.”     Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super. 2003) (quoting Commonwealth v. DiStefano, 782 A.2d 574,

582 (Pa.Super. 2001)). In applying this standard, “we may not weigh the

evidence and substitute our judgment for the fact-finder.” Id. Further, “the

facts and circumstances established by the Commonwealth need not

preclude every possibility of innocence.”   Id.   Moreover, “[a]ny doubts

regarding a defendant’s guilt may be resolved by the fact-finder unless the

evidence is so weak and inconclusive that as a matter of law no probability

of fact may be drawn from the combined circumstances.”           Id.   “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”   Id.   In applying the above test, we must evaluate the entire


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J-S79022-16


record. Id. Further, “the 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.”           Lehman, 820 A.2d at 772 (quoting

DiStefano, 782 A.2d at 582).

      To uphold a PWID conviction:

           the Commonwealth must prove beyond a reasonable doubt
           that the defendant possessed a controlled substance and
           did so with the intent to deliver it. The intent to deliver
           may be inferred from an examination of the facts and
           circumstances surrounding the case. Factors which may
           be relevant in establishing that 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.

Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000) (en

banc).

      Viewing     the   evidence   in    the     light   most   favorable   to   the

Commonwealth, we conclude that there was sufficient evidence to support

Brown’s PWID conviction.        Brown does not contest that he possessed

cocaine.     Furthermore, Officer Tony Morrone, an expert in the field of

narcotics packaging and delivery as stipulated by the parties, see N.T.,

7/28/15, at 14, testified that Brown possessed the cocaine with intent to

distribute and not for personal use based not only on quantity but also on

the way it was packaged and discarded as well on as the absence of drug-

use paraphernalia in Brown’s possession. Id. at 16. The trial court credited

this testimony; that Brown presented contrary evidence is irrelevant to the



                                        - 12 -
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sufficiency analysis.     There was sufficient evidence from which the trial

court as fact-finder could infer intent to deliver. Aguado, 760 A.2d at 1185.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2017




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