J-S33028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL WAY                                :
                                               :
                       Appellant               :   No. 3061 EDA 2019

         Appeal from the Judgment of Sentence Entered August 14, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006057-2017

BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                                 Filed: August 25, 2020

        Michael Way (Appellant) appeals from the judgment of sentence

imposed following his convictions of possession of a controlled substance and

possession with the intent to deliver a controlled substance (PWID).1

Appellant challenges the trial court’s denial of his suppression motion. After

careful consideration, we affirm.

        The trial court summarized the testimony from the suppression hearing:

           While conducting a separate investigation, Office[r] [Timothy]
        Bogan [(Officer Bogan)] observed a blue pickup truck in the
        Franklin Mills parking lot of Dick[’]s Sporting Goods, at
        approximately 1:45 p.m. on April 26, 2017. He observed a white
        Cadillac arrive and pull up in front of the blue pickup truck and
        honk its horn. The Cadillac drove off slowly and the blue pickup
        truck followed the Cadillac[,] lawfully parking in the Wal-Mart
        parking lot. Officer Bogan became suspicious of the two vehicles
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(16), (30).
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      at this time and watched the driver of the blue pickup truck get
      out of the vehicle and enter the front passenger side of the
      Cadillac. After waiting for approximately one minute, Officer
      Bogan and Officer [Brian] Sumpter [(Officer Sumpter)], dressed
      in plain clothing, stepped out of their unmarked [vehicle],
      approached the Cadillac, and announced themselves as police
      officers. Four other officers joined Officer Bogan and Officer
      Sumpter, bringing the number of officers involved in the
      questioning to six.     Upon approaching the Cadillac, Officer
      Sumpter observed through tinted windows and an open door, a
      plastic bag containing crack cocaine packets between
      [Appellant]’s legs.     Upon observing the narcotics, Officer
      Sumpter[] further opened the already opened driver door where
      he detained [Appellant], recovering a total of 59 smaller packets
      of crack cocaine with the large Ziploc bag.

          Officer Bogan has around 30 years of experience as a police
      officer and over 20 years of narcotics experience[,] with personal
      experience dealing with drug transactions.        [Officer Bogan
      testified:]

          A: Your Honor, as to my years of me also purchasing
          narcotics, I would be waiting -- after I would make a phone
          call, I would be waiting in the vehicle or on the corner, and
          a ca[r] would pull up and blow his horn for me to get into
          the vehicle to make a purchase.

          Q: So you have witnessed or in the past, you had witnessed
          narcotics transactions with all of the similar patterns?

          A: I had witnessed them and also performed them myself.

      [N.T., 4/17/19, at 11]. Officer Sumpter has around 24 years of
      experience in narcotics as well.

Trial Court Opinion, 1/22/20, at 1-2.

      Following his arrest, the Commonwealth charged Appellant with

possession of a controlled substance and PWID. On July 10, 2018, Appellant

filed a motion to suppress the drugs recovered from his encounter with the

police.   On April 17, 2019, the trial court held a hearing on Appellant’s

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suppression motion. At the conclusion of the hearing, the trial court denied

the motion, and the case immediately proceeded to a bench trial. The trial

court found Appellant guilty of the aforementioned crimes. On August 14,

2019, the trial court sentenced Appellant to three years of probation.

      On October 10, 2018, following the grant of nunc pro tunc relief,

Appellant filed a notice of appeal to this Court.    Both the trial court and

Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Appellant presents the following issue for review:

      1.    Police initiated an investigative detention after observing
      two people meet in a mall parking lot after arriving in separate
      cars. Did the Commonwealth fail to establish reasonable suspicion
      to justify the detention?

Appellant’s Brief at 3.

      At the outset, we recognize:

      [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 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 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 [ ] plenary review.




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Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation

omitted). Our scope of review is limited to the evidentiary record from the

suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      Appellant argues that the police lacked reasonable suspicion to detain

him in the Wal-Mart parking lot.     Appellant contends the evidence at the

suppression hearing merely established that “Appellant in the white Cadillac

drove up to the blue pickup truck in the parking lot, honk[ed] his horn, and

allow[ed] the individual in the blue pickup truck [to] enter the passenger side

after both vehicles parked.” Appellant’s Brief at 8. Appellant asserts these

facts did not “establish reasonable suspicion that drug activity was afoot.” Id.

      There are three categories of interactions between police and citizens:

      The first of these 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. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted).

      “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.”

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000). In evaluating

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the totality of the circumstances, our focus is whether, “by means of physical

force or show of authority, the citizen-subject’s movement has in some way

been restrained.” Id. at 889. In making this determination, no single factor

dictates “the ultimate conclusion as to whether a seizure has occurred.” Id.

      In this case, neither party disputes that the officers conducted an

investigatory detention of Appellant.       When evaluating the legality of

investigative detentions, Pennsylvania has adopted the holding of Terry v.

Ohio, 392 U.S. 1 (1968), where the United States Supreme Court held that

police may conduct an investigatory detention if they have reasonable

suspicion that criminal activity is afoot. In re: D.M., 781 A.2d 1161, 1163

(Pa. 2001).   These encounters with police are commonly known as Terry

stops. In order to prove reasonable suspicion, “the police officer must be able

to point to specific and articulable facts and reasonable inferences drawn from

those facts in light of the officer’s experience.” Commonwealth v. Cook,

735 A.2d 673, 677 (Pa. 1999). “The determination of whether an officer had

reasonable suspicion that criminality was afoot so as to justify an investigatory

detention is an objective one, which must be considered in light of the totality

of the circumstances.”    Commonwealth v. Walls, 53 A.3d 889, 893 (Pa.

Super. 2012).

      In this case, Officer Bogan testified as follows at the suppression

hearing:

         On [April 26, 2017], myself, along with other members of my
      team, we set up surveillance of the Franklin Mills parking lot for

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     another investigation, Your Honor. At approximately 1:45 p.m.[,]
     I observed a blue pickup arrive in the Franklin Mills parking lot and
     park in a handicap parking spot by -- I believe it is Dick[’]s
     Sporting Goods.

         At that point, Your Honor, two minutes later, a white Cadillac
     arrived and pulled in front of the blue pickup truck. I heard a horn
     blown, and the Cadillac slowly drove off and the blue pickup
     followed the Cadillac. At that point, it kind of raised my suspicion,
     Your Honor.

        At that point in time, I watched the vehicles and [they] pulled
     over to the Wal-Mart parking lot. At that point, the operator of
     the blue pickup was identified as Joe Russo. He exited the front
     pickup and entered the front passenger’s side of the Cadillac.

        At that point, Your Honor, I waited a minute or so. We
     approached the vehicle, identified ourselves as police officers.
     Officer Sumpter was on the driver’s side of the vehicle and he
     relayed to me that [Appellant] had a plastic bag in between his
     legs that contained crack packets.

        At that point, Russo was taken out of the vehicle, as well as
     [Appellant]; that plastic baggie contained 12 peach colored
     packets of crack cocaine and 47 clear packets of crack cocaine.
     Also confiscated off of [Appellant] was $467.00 US currency and
     then two cell phones.

        Your Honor, while we are out there, Mr. Russo stated that he
     owed [Appellant] $50 United States currency and there was $50
     recovered from the center console. At that point, there [was]
     nothing recovered from Mr. Russo and he was released at the
     scene. Back inside of headquarters, I conducted a NIK Test G,
     which I’m certified to do, and that test was positive for the
     presence of cocaine base. The narcotics, money and cell phones
     were placed on a property receipt.

N.T., 4/17/19, at 7-9.

     Importantly, Officer Bogan further testified regarding his extensive

experience with narcotics investigations:




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     Q.     And now, Officer Bogan, how long have you been a police
     officer?

     A.    Going on 30 years.

     Q.   And during the course of those 30 years, where have you
     been assigned?

     A.    When I graduated the academy, Your Honor, I was assigned
     to the 23rd District in ‘89. In ‘97, I transferred to the Narcotic
     Strike Force, which is a uniformed branch of the Narcotics Field
     Unit.

           In May of 98, I was transferred to the Narcotics Field Unit.
     In July of 2011 -- I believe it is 2011 -- I was transferred to
     Internal Affairs. In July of 2012, I was transferred back into the
     Field Unit, and that is where I have been since.

     Q.    Officer -- I’m sure you don’t have the exact number, but
     over the course of your career, can you give us a rough estimate
     of how many narcotics investigations you’ve participated in?

     A.    I will say, well over 500.

     Q.    And have you received any specialized training with respect
     to the packaging sale and the use of narcotics?

     A.    We did receive a two-week training prior to coming to the
     Strike Force on the packaging of narcotics. But when I was in the
     23rd -- we made narcotics arrests in the 23rd. So I kind of like
     was familiar with the way narcotics are packaged.

     Q.   Now, you indicated that the vehicle -- I believe you said i[t]
     was a blue pickup truck?

     A.    Yes.

     Q.    And then the white Cadillac came in after the h[o]nk of the
     horn.

     A.    Yes.

     Q.     And you indicated that this raised your suspicion. Can you
     tell the court why?

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     A.    Your Honor, as to my years of me also purchasing narcotics,
     I would be waiting -- after I would make a phone call, I would be
     waiting in the [] vehicle or on the corner, and a ca[r] would pull
     up and blow his horn for me to get into the vehicle to make a
     purchase.

     Q.    So you have witnessed or in the past, you had witnessed
     narcotics transactions with all of the similar patterns?

     A.    I had witnessed them and also performed them myself.

     Q.   Now when you approached the Cadillac, was that vehicle
     parked?

     A.     Yes. Both vehicles were parked. When the Cadillac pulled
     up in front of the blue pickup at Dick[’]s Sports, before we drove
     off, the pickup followed the Cadillac to [the] Wal-Mart parking lot
     and they parked side by side or close to side by side. Russo exited
     and entered [Appellant]’s vehicle.

     Q.    And now were you and your fellow officers on foot or on the
     vehicle yourselves?

     A.    We were in the vehicles.

     Q.    And you said you pulled up to that location when you got
     out of your vehicle?

     A.    Your Honor, I approached the passenger’s side of the vehicle
     with other officers and Officer Sumpter approached the driver’s
     side of the vehicle with other officers.

     Q.   And how far away from the occupants of the vehicle were
     you when you approached it?

     A.    I mean I was walking up on the vehicle. So at that point,
     I’m walking up and I’m exiting my vehicle and walk up to the
     Cadillac.

     Q.    So were you able to see clearly inside of the vehicle?

     A.    I can see inside of the vehicle, yes.


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      Q.    Were you able to see what Officer Sumpter and Brown were
      doing at the same time?

      A.   I could not see what Officer Sumpter was doing. My focus
      on that point was on Russo, and I did see money in the center
      console.

      Q.    And what was it that you believed that you were observing
      as you walked up to that vehicle?

      A.    Based on my experience, I believed that to be a drug
      delivery service.

Id. at 9-12.

      Thus, the record reflects that during the afternoon on the date in

question, Officer Bogan and five other Narcotics Field Unit officers were

conducting surveillance of a mall parking lot for drug trafficking. Id. at 7.

Officer Bogan observed a white Cadillac drive into a Dick’s Sporting Goods

parking lot and stop in front of a parked blue pickup truck. Id. at 7-8. The

driver of the Cadillac honked his horn at the truck. Id. at 8. Officer Bogan

then saw the truck follow the Cadillac to the Wal-Mart parking lot, where the

vehicles parked next to each other. Id. Officer Bogan observed the driver of

the truck exit his vehicle and enter the Cadillac, sitting in the front passenger

seat. Id. Based on his extensive narcotics investigation experience, including

30 years on the Philadelphia Police Force, 21 of which he spent on the

Narcotics Field Unit, Officer Bogan recognized the behavior of the respective

drivers of the vehicles as a narcotics transaction. Id. at 9-11. Officer Bogan

testified that he made this determination based on his participation in “well

over” 500 narcotics investigations, many of which he acted as a drug buyer,

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and executed the same pattern of behavior. Id. at 10-11. Officer Bogan

explained that in those cases, the narcotics seller would often drive up to the

vehicle of the buyer, honk the car horn, and then lead the buyer to another

location to park and conduct the drug transaction. Id. at 11.

      The record reveals that the six officers surveilling the area then

converged on the Cadillac.     Id. at 8, 12, 14, 18.     When Officer Sumpter

approached the Cadillac, he opened the driver’s side door and saw Appellant

sitting with several packets of crack cocaine in a clear Ziploc Bag between his

legs. Id. at 18.

      In support of his argument, Appellant relies on Commonwealth v.

Walton, 63 A.3d 253, 255 (Pa. Super. 2013).        In Walton, the trial court

relied on the following facts in making the determination that the police had

reasonable suspicion to stop and detain the appellant:

      Officer Bridges testified that he saw a white male and female in
      the parking lot kind of walking around, pacing back and forth, and
      that [t]hey were on and off their cell phone several times looking
      around. Officer Bridges stated that this conduct looked kind of
      suspicious to [him]. He explained that based on his experience,
      he knew that’s how a lot people will meet with drug dealers or
      drug dealers themselves will stand in a parking lot to meet them.
      When [a]ppellant’s vehicle pulled up to the couple in the parking
      lot and they started talking to each other Officer Bridges stated,
      it looked like some type of deal was going to go down.

Id. at 258.

      This Court, however, rejected the trial court’s determination that this

testimony indicated that the police had reasonable suspicion to stop and

detain the appellant.    Id.   We explained that “[t]he record [] reflects

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insufficient evidence to justify an ‘investigative stop.’ Without more, Officer

Bridges’ observations are consistent with innocent activity and nothing more

than a hunch a drug transaction was to transpire.” Id.

      We find Walton readily distinguishable from this case. The officer in

Walton did not explain with any specific or articulable facts regarding how he

knew the behavior of the individuals involved in that case was “how a lot of

people . . . meet with drug dealers.” See id. The officer only testified that

his conclusion was “based on his experience[,]” see id., but he did not

articulate what experiences he had that supported this conclusion. In this

case, however, Officer Bogan testified that not only did the behavior of the

drivers of the Cadillac and the blue pickup appear identical to other vehicle-

related drug transactions he has witnessed, but also that Officer Bogan himself

has engaged in similar drug transaction behavior while acting as a drug buyer

in undercover narcotics operations.

      Additionally, unlike Walton, the conduct of the drivers of the Cadillac

and blue pickup were not merely consistent with innocent activity. This case

included the added step of the driver of the pickup truck exiting his vehicle

and entering the front passenger seat of the Cadillac (Appellant’s vehicle) so

that their interaction was not visible by anyone outside. Thus, in this case the

drivers of the Cadillac and the pickup truck exhibited behavior that Officer

Bogan specifically knew was, based upon his training and experience,




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suspicious behavior. By contrast, the behavior of the appellant in Walton

provided no indicia of criminal activity. See id. at 258.

      Therefore, we conclude that the record supports the trial court’s

determination that Officer Bogan’s testimony pointed to specific and

articulable facts that, in light of the officer’s experience, gave him the

reasonable belief that the drivers of the Cadillac and blue pickup truck were

engaging in a drug transaction.    Accordingly, the trial court did not err in

denying Appellant’s suppression motion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/20




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