Com. v. Moultrie

Decision Date03 March 2005
Citation870 A.2d 352
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Eric MOULTRIE, Appellant.
CourtPennsylvania Superior Court

Joseph F. Sklarosky, Sr., Forty Fort, for appellant.

Frank P. Barletta, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.

BEFORE: ORIE MELVIN, McCAFFERY, and TAMILIA, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 After a conversation with a police officer in which he was told he was free to leave, Appellant, Eric Moultrie, consented to a search of his person. The search revealed that he was carrying packets of what was later determined to be cocaine and heroin. On appeal, we are asked to decide whether the fruits of that search should have been suppressed. We conclude that the encounters between the police and Appellant were proper investigative detentions, and that Appellant's consent to the subsequent search was voluntary. Accordingly, the suppression court properly denied Appellant's motion to suppress, and we affirm Appellant's judgment of sentence.

¶ 2 The facts as found by the Honorable Peter Paul Olszewski, Jr. at the suppression hearing are as follows:

On June 9, 2003[,] at approximately 5:30 p.m., Kingston Borough Police Officers Sam Blaski and Edward Palka, who were both in full uniform and driving separate marked patrol vehicles, initiated a traffic stop on the Market Street Bridge. Because of the obvious safety concerns, Officer Blaski directed the driver to proceed over the bridge and to stop on North River Street in the City of Wilkes-Barre. The driver of the vehicle was identified as Kenneth Dunbar. The front seat passenger was identified as Eric Moultrie, [Appellant] in the instant matter. The traffic stop was conducted as a result of Officer Blaski's observations of the vehicle operating in an erratic manner, i.e., very fast and switching lanes without signaling. Additionally, the officer also observed the vehicle did not have an expiration sticker on the plate.
When Officer Palka arrived behind the stopped vehicle,1 he saw the passenger [Appellant] turn around and observe the officers and make a movement like he was putting something underneath the seat; a gesture the officer described as a furtive movement. Officer Blaski also observed [Appellant] rising up in the seat as if he was placing something somewhere. As Officer Blaski approached the driver's side, Officer Palka covered the passenger side and stood to the right rear of the passenger's door. When Officer Blaski engaged the driver, he discovered the driver was a wanted person and did not possess a valid driver's license. The driver was removed from the vehicle and placed into custody.
Officer Palka asked [Appellant] if he had a valid driver's license. [Appellant] replied that he did not. Since the operator had been placed under arrest and [Appellant] had no license, he was asked to exit the vehicle. The vehicle would be towed from the scene. [Appellant] exited the vehicle as a result of Officer Palka's request. Neither Mr. Dunbar nor [Appellant] owned the vehicle.
Officer Palka asked [Appellant] if he had any weapons and [Appellant] replied he did not. Office Palka next asked [Appellant] if he would consent to a pat-down search. [Appellant] agreed. During the pat-down search no weapons were found. As Officer Palka conducted the pat-down search, [Appellant] put his hands down from the roof of the vehicle towards his crotch area and brushed against [Officer] Palka's hands. [Officer] Palka asked [Appellant] to replace his hands on the vehicle so that he could conclude the pat-down search. [Appellant] complied with this instruction for a couple of seconds before he again put his hands back down. [Appellant] said nothing when he put his hands towards his midsection. Officer Palka found nothing during the search.
Officer Palka then advised [Appellant] to "have a seat" on the street curb. [Appellant] was neither placed under arrest nor handcuffed. Neither officer drew his weapon during the entire incident. [Appellant] wished to sit and wait for Mr. Dunbar in order to find out the amount of bail that might be needed.
Officer Palka subsequently advised Officer Blaski that during the pat-down of [Appellant], [Appellant] got fidgety when Palka's hands approached [Appellant's] midsection. Officer Blaski, who received consent to search the vehicle from the driver, approached the vehicle to begin his search. As Officer Blaski did so, [Appellant] approached Officer Blaski and engaged him in small talk. [Appellant] was conversing about the driver who was now in the back of the police cruiser and about obtaining bail money for him. [Appellant] was also on his cell phone making phone calls in an attempt to arrange bail. Officer Blaski then advised [Appellant] that he was going to begin searching the vehicle and that [Appellant] was free to leave. [Appellant] advised Officer Blaski that he wanted to stay around and attempt to secure bail money for his friend. Officer Blaski did not instruct [Appellant] to leave the area.
[Appellant] chose to remain in the immediate vicinity of the police cruiser. Officer Blaski advised [Appellant] that should he wish to remain, [Officer Blaski] would request consent to conduct a search. [Appellant] agreed to the search and indicated that Officer Palka had already performed a similar search. Officer Blaksi requested this search due to a concern about turning his back to [Appellant] while performing a search of the vehicle. [Appellant] raised his hands and Officer Blaski began patting his pockets; when. . . the officer reached [Appellant's] groin section, [Appellant] grabbed Officer Blaski's hand. At the time, Officer Blaski felt plastic baggies which he suspected were drugs. The officer felt rubber bands and a couple of bundles. Officer Blaski immediately took [Appellant's] hand off his hand and advised [Appellant] he was under arrest. Officer Blaski described his tactile impression as bundles and a clear plastic baggie over the top. Officer Blaski is a trained and experienced police officer with regard to narcotics investigations. Officer Blaski's tactile impression and [Appellant's] conduct in grabbing the officer's hand occurred simultaneously. Blaski advised [Appellant] to stop grabbing his hand; [Appellant] smiled, raised his hands up and placed them on the vehicle.

(Findings of Fact and Conclusions of Law, dated December 9, 2003, at 1-5) (numerical references omitted). To this rendition we add that Officer Blaski finished the pat down of Appellant and recovered a bag of suspected narcotics,2 a total of $370 in cash and a cell phone. (Notes of Testimony ("N.T.") Suppression Hearing, 12/3/03, at 44-45, 57-58). On December 3, 2003, Judge Olszewski held a hearing on Appellant's motion to suppress the evidence seized from the search. After listening to the testimony and observing the witnesses, Judge Olszewski resolved the issue of credibility in favor of the Commonwealth (Findings of Fact and Conclusions of Law at 5), and denied Appellant's motion to suppress the contraband. At the conclusion of the bench trial on December 8, 2003, Judge Olszewski convicted Appellant of two (2) counts of possession with intent to deliver3 and related crimes,4 and later sentenced him to a total of six and one-half (61/2) to thirteen (13) years' incarceration. Appellant then filed this timely appeal, presenting the following issues for our review:

I. WAS NOT THE CONSENT GIVEN BY [APPELLANT] FOR A SECOND PAT-DOWN "FRISK" INVALID IN THAT HE WAS THE SUBJECT OF AN UNLAWFUL DETENTION[?]
II. WAS NOT THE EVENTUAL SEIZURE — OR ARREST — OF [APPELLANT] INVALID IN THAT IT WAS NOT BASED ON PROBABLE CAUSE THAT HE HAD COMMITTED A CRIME[?]

(Appellant's Brief at 3).

¶ 3 As a prefatory matter, we are mindful of the following:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution 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 record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.Super.2004) (quoting Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004)).

¶ 4 We have carefully reviewed the record and conclude that it fully supports the suppression court's factual findings. (See N.T. Suppression Hearing at 7-68). Thus, our focus now shifts to the propriety of the legal conclusions drawn from those facts by the suppression court. See Blair, supra.

¶ 5 Appellant first contends that he was subjected to an illegal investigative detention by Officer Blaski and, therefore, his consent to the pat down was not voluntary. As a consequence, Appellant maintains that the fruits of the pat-down should have been suppressed because the search was tainted by the illegal detention. (Appellant's Brief at 12-13). We reject Appellant's argument.

¶ 6 At the outset, we recognize that while the law regarding search and seizure is continually evolving, "its focus remains on the delicate balance of protecting the right of citizens to be free from unreasonable searches and seizures and protecting the safety of our citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime." Blair, supra (citations omitted). Mindful of this balance, we recently addressed the elements of a voluntary consensual search in Commonwealth v. LaMonte, 859 A.2d 495 (Pa.Super.2004). There, we reiterated the applicable analysis in these cases:

Where, as in the case sub judice,
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