Com. v. Ellis

• Decision Date: 19 July 1995
• Citation: 541 Pa. 285,662 A.2d 1043
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Derek ELLIS, A/K/A Derek Reon Ellis, Appellant.
• Court: Pennsylvania Supreme Court

Page 1043

662 A.2d 1043

541 Pa. 285

COMMONWEALTH of Pennsylvania, Appellee, v. Derek ELLIS, A/K/A Derek Reon Ellis, Appellant.

Supreme Court of Pennsylvania.

Submitted March 9, 1995.

Decided July 19, 1995.

Ira C. Houck, Jr., Public Defender, Shelley Stark, Chief-Appellate Div., James R. Wilson, Appellate Counsel.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, and James R. Gilmore, Asst. Dist. Attys., for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

This is an appeal from an order of the Superior Court affirming a judgment of sentence entered against petitioner in the Court of Common Pleas of Allegheny County, Criminal Division, following his conviction for one count of Burglary, 18 Pa.C.S. § 3502. ¹ The issues presented concern whether the police illegally seized Appellant and certain items of evidence in his possession after initiating a valid investigatory stop. If we determine that an illegal seizure occurred, we must also find that the Superior Court erred in holding Appellant's trial counsel was not ineffective for failing to file a motion to suppress the fruits of the illegal detention. If, however, we find that Appellant was not illegally detained, we must affirm the Superior Court's conclusion that Appellant's trial counsel was not ineffective for failing to challenge the detention. Finally, if we conclude that the police illegally removed evidence from Appellant's vehicle, we must reverse the holding of the Superior Court and remand the case for a new trial. After reviewing the record, the arguments of counsel, and the relevant case law we affirm the holding of the Superior Court.

The facts giving rise to this case are as follows: On September 30, 1991, at approximately 2:00 a.m., Officer Thomas Neibel of the McCandless Police received a radio dispatch stating that the Pine Township Police had received a burglar alarm call at a business, Perma Ceram, on Route 19 in their township. Route 19 is a major four lane highway that runs, in part, from the south of the City of Pittsburgh, to the north, through several municipalities including McCandless and Pine Townships.

Upon hearing the dispatch and a subsequent request for assistance, Officer Neibel proceeded north on route 19 toward the Pine Township line. While en route he was advised that two actors, who were described as white or possibly "Mexican", were leaving the scene of the burglary. As Neibel closed to within a half mile of the burglary scene, he spotted a vehicle traveling south which fit the radioed description of the vehicle seen leaving the area of the burglary. In addition, the vehicle's location corresponded to the position where a car would be found had it left the burglary site at the time of the broadcast. Officer Neibel then made a U-turn and proceeded to follow the vehicle for three-quarters of a mile before pulling it over.

After two other McCandless police officers arrived on the scene, Officer Neibel approached the vehicle and ordered Appellant, who was driving, and his companion, both of whom are African-American, to exit the vehicle. The officer then patted down the two men and searched the passenger compartment of the car for weapons. In the course of his search of the passenger compartment, Neibel noticed a screwdriver on the floorboard of the vehicle behind the driver's seat.

Following the search of the vehicle, the suspects were ordered to remain seated in their vehicle while Officer Neibel checked Appellant's licensure and the burglary information. After reviewing Appellant's operator's information, Neibel issued a citation to Appellant for driving without a license.

During this time, Officer Vierling of the Pine Township Police had proceeded to the scene of the burglary, noted the point of entry and found pry marks on the door. Vierling then contacted the witness who had made the burglary call and took him to the scene of the stop for identification.

Vierling and the witness arrived at the scene of the detention approximately ten to fifteen minutes after the initial stop of Appellant's vehicle, and shortly after Officer Neibel had finished issuing a citation to Appellant. Upon their arrival, the witness stated that he was eighty-five percent sure that Appellant's vehicle was the one he had seen leaving the area of the burglary. After speaking with Officer Neibel, Vierling approached Appellant's vehicle and removed the screwdriver Neibel had previously observed, because he felt the tool was capable of making the sort of pry marks visible on the door of Perma Ceram. Appellant was removed from his vehicle and placed in the backseat of one of the McCandless police cars so that he could be observed by the witness, who was still seated in Vierling's patrol car. The witness, however, was unable to identify Appellant positively.

While Appellant was seated in the back of the McCandless police vehicle, Vierling approached and asked if he could take the screwdriver and one of Appellant's tennis shoes back to the crime scene to compare them with the pry marks on the door and any foot prints, respectively. Appellant agreed, and Vierling departed for the crime scene. By this time, approximately half an hour had passed since the initial stop.

Upon returning to the crime scene, Vierling noted that the pry marks on the door of Perma Ceram appeared to be the same width as the screwdriver he had seized from Appellant's car. Vierling, however, was unable to find any footprints to compare with Appellant's shoe. After approximately fifteen to twenty minutes, he returned to the scene of the stop, where Appellant was still waiting with the McCandless police.

After returning Appellant's shoe, Officer Vierling requested that Appellant accompany him to the station. Appellant and his companion then followed the officers to the police station where he was given Miranda warnings, agreed to make a statement, and signed a consent to search his vehicle. Appellant denied any involvement in the burglary, and claimed that he was in the area after having gotten lost leaving his sister's house. An inventory search of the car revealed two bottles of wine, one with an Asti Spumante label, and an envelope containing several sheets of postage stamps in the rear passenger compartment. Appellant was permitted to leave after the search.

At approximately 8:00 a.m. that same morning, the Pine Township police received two additional burglary reports from the Auto Service Mall and GME Systems, which were located approximately one quarter mile from Perma Ceram on Route 19. An investigation revealed that two bottles of wine, one of them Asti Spumante, and several sheets of postage stamps had been stolen from GME Systems.

The police then obtained an arrest warrant for Appellant based on the inventory search of his vehicle. The police subsequently served the warrant at the home of Appellant's girlfriend in Wilkinsburg, PA. As they placed Appellant under arrest, the officers asked Appellant where the tennis shoes were that he had worn when he was stopped by the police earlier that morning. Appellant then directed his girlfriend to retrieve the shoes from an upstairs bedroom, and she gave them to the police. Tests subsequently revealed that soles of these shoes matched footprints found at the Auto Service Mall. In addition, laboratory analysis also revealed that the screwdriver found in Appellant's vehicle on the morning of September 30, 1991, matched pry marks found at each of the burglary locations.

Appellant was charged with three counts of burglary and one count of criminal conspiracy. Prior to trial, Appellant made an oral motion to suppress the evidence against him on the grounds that the initial stop had not been supported by reasonable suspicion and that he had not consented to the seizure of his shoes at the time of arrest. This motion was denied and the case proceeded to a jury trial. At the close of the evidence, the trial court granted Appellant's demurrer to the conspiracy count, and the jury subsequently found Appellant guilty of one count of burglary (relating to the burglary of the Auto Service Mall), and not guilty of the remaining counts.

Post-trial motions were denied and Appellant was sentenced to a term of forty to eighty months incarceration. On appeal, the Superior Court affirmed the judgment of sentence, and this Court granted allocatur.

Appellant claims he is entitled to a new trial on the basis of counsel's failure to argue for the suppression of evidence on the grounds that (1) the continued detention after the initial stop of his vehicle was unsupported by reasonable suspicion, and (2) that the lengthy roadside stop to which he was subjected amounted to a custodial detention unsupported by probable cause. ²

The standard under which a claim of ineffective assistance of counsel is to be assessed is well-established and was recently set forth by this court in Commonwealth v. Robert Douglas, 537 Pa. 588, 645 A.2d 226 (1994). First, a defendant must show his claim to be of arguable merit. In the event this threshold requirement is satisfied, the defendant must next establish that defense counsel had no reasonable basis for undertaking or failing to undertake the act or omission in question. Finally, the defendant must show that there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. In other words, that the defendant suffered actual prejudice from the act or omission. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With this standard in mind, we now turn to the merits of Appellant's claims.

Initially we note that Fourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the...