Com. v. Smith

• Decision Date: 26 April 1999
• Citation: 732 A.2d 1226
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. April Georgette SMITH, Appellant.
• Court: Pennsylvania Superior Court

732 A.2d 1226

COMMONWEALTH of Pennsylvania, Appellee, v. April Georgette SMITH, Appellant.

Superior Court of Pennsylvania.

Argued August 5, 1998.

Filed April 26, 1999.

Reargument Denied June 30, 1999.

Jeffrey G. Velander, Stroudsburg, for appellant.

Adrienne Duvall, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

Before McEWEN, President Judge, and STEVENS and LALLY-GREEN, JJ.

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Montgomery County following Appellant's conviction of possession of a controlled substance,¹ possession of a controlled substance with the intent to deliver,² and possession of a small amount of marijuana.³

¶ 2 Appellant's conviction and sentence stem from a November 22, 1996 drug interdiction investigation performed at the bus terminal located in the Valley Forge Shopping Center in Montgomery County. N.T. 9/22/97 at 7. As part of the investigation, Agent Ronald Paret, of the Pennsylvania Attorney General's Office, and Trooper David Hodges, of the Pennsylvania State Police, approached a Greyhound bus which had stopped on its journey from New York City to Pittsburgh via the Philadelphia and Harrisburg areas. N.T. 9/22/97 at 8, 30. Agent Paret and Trooper Hodges were dressed in plain clothes, and wore jackets which identified them as law enforcement officers. N.T. 9/22/97 at 11-12. Both carried weapons concealed by their jackets. N.T. 9/22/97 at 12.

¶ 3 Agent Paret and Trooper Hodges received permission from the bus driver to board the bus, and, before entering the bus themselves, they first allowed passengers to board or exit it. N.T. 9/22/97 at 9-11, 25. When the law enforcement officers boarded the bus, Trooper Hodges identified himself and Agent Paret, and explained why they were on the bus. N.T. 9/22/97 at 12-13, 49. Starting at the back of the bus, Trooper Hodges began to talk to the passengers. N.T. 9/22/97 at 13, 51. While the law enforcement officers were in the back of the bus, the aisle was clear for passenger movement, and the bus door remained open at all times. N.T. 9/22/97 at 13, 15. While conversing with the passengers, including Appellant, Agent Paret and Trooper Hodges used a normal tone of voice, and did not raise their voices. N.T. 9/22/97 at 15. When performing a drug interdiction investigation, the law enforcement officers abide by the schedule of the busses, and, if a driver indicates to Agent Paret that the bus needs to leave, Agent Paret "wraps up" the investigation. N.T. 9/22/97 at 43. In addition, if a passenger is unwilling to speak with him during an investigation, Trooper Hodges does not press that person but instead moves on to the next passenger. N.T. 9/22/97 at 58.

¶ 4 There were approximately thirty-five (35) to forty (40) people on the bus during the investigation in question, and Appellant, sitting in a window seat in the first row, opposite to the driver's side, was the last person Trooper Hodges approached. N.T. 9/22/97 at 15-16. The aisle seat next to Appellant was occupied. While talking with Appellant, Trooper Hodges stood in the stairwell of the bus, leaving the aisle in front of Appellant clear and the open bus door accessible, and Agent Paret stood in the aisle to the rear of the row which Appellant sat. N.T. 9/22/97 at 16, 32. If a passenger wished to enter or exit the bus at this point, they would have been able to pass next to Trooper Hodges, as he was not blocking the stairway. N.T. 9/22/97 at 32.

¶ 5 Trooper Hodges asked Appellant if he could see her ticket and some identification, and noted that both bore the name April Smith. N.T. 9/22/97 at 52-53. After examining Appellant's ticket and identification, Trooper Hodges handed them back to Appellant. N.T. 9/22/97 at 53. He then inquired about her trip, and Appellant indicated that she was travelling to Pittsburgh, where she would be staying for five days. N.T. 9/22/97 at 53. Trooper Hodges realized that her ticket did not have a luggage claim ticket stapled to it, however, and when he asked if Appellant had any luggage, she responded that she did not. N.T. 9/22/97 at 53. Trooper Hodges found it unusual for a person to be taking a five-day trip with no luggage whatsoever. N.T. 9/22/97 at 53, 56. Despite Appellant's claim that she had no luggage, Trooper Hodges noticed a black handbag sitting on the floor of the bus, right next to Appellant's feet. N.T. 9/22/97 at 54; N.T. 9/23/97 at 52. The bag was positioned between Appellant's right foot and the wall of the bus, not between Appellant's left foot and the feet of the passenger sitting next to her. N.T. 9/22/97 at 18, 54. When Trooper Hodges asked Appellant "does that bag right by your foot belong to you," Appellant looked away from him and denied ownership. N.T. 9/22/97 at 56. Trooper Hodges asked the passenger sitting next to Appellant if the bag was hers, and when the passenger told him it was not, the trooper retrieved the bag. N.T. 9/22/97 at 17-18, 36, 56. In order to determine if the bag had been abandoned on the bus, Trooper Hodges held it up for the other passengers to see, and asked if it belonged to anyone. N.T. 9/22/97 at 17-18, 36, 56, 80. He repeated this process twice, but no one claimed the bag. N.T. 9/22/97 at 36, 56-57; N.T. 9/23/97 at 60. Before concluding that a bag has been abandoned, it was Agent Paret's practice to make sure that every passenger was accounted for, and that none were off the bus when the law enforcement officers sought the owner of a bag. N.T. 9/22/97 at 38-39. Trooper Hodges set the bag down on the stairwell, out of sight of the passengers, and looked inside, finding a shirt, and plastic bags containing zip-lock bags which held what appeared to be drugs.⁴ N.T. 9/22/97 at 57-58, 85; N.T. 9/23/97 at 55. Trooper Hodges did not at this point feel he had probable cause to arrest Appellant, but he did not believe her statement that the bag found directly at her feet, and unclaimed by any other passenger, was not hers. N.T. 9/22/97 at 60. He asked Appellant if she would mind speaking with him off the bus in private. N.T. 9/22/97 at 57, 59. Trooper Hodges did not touch Appellant in any way, or make any show of force when making this request. N.T. 9/22/97 at 61. When Appellant followed the trooper off the bus, he again asked if the bag was hers. N.T. 9/22/97 at 60, 62. She looked down, and again denied ownership. N.T. 9/22/97 at 60, 62. Trooper Hodges explained to Appellant that the police would be able to identify the owner of the bag through finger prints and hair samples. N.T. 9/22/97 at 60. Appellant was silent for a moment, then responded that the drugs did not belong to her and that she was only transporting them for someone else. N.T. 9/22/97 at 60. In light of this statement, Trooper Hodges took Appellant into the bus station, explained her Miranda⁵ rights, and arrested her for transporting narcotics. N.T. 9/22/97 at 64-66. After her Miranda rights were given, Appellant told Trooper Hodges that she was transporting the drugs for a friend in exchange for four hundred dollars ($400.00) to buy her son shoes. N.T. 9/22/97 at 66; N.T. 9/23/97 at 56-58. A search of Appellant's purse revealed two small packs of marijuana.

¶ 6 On February 19, 1997, Appellant filed an omnibus pre-trial motion, seeking to suppress the evidence seized by the police, as well as the statements Appellant made to Trooper Hodges. A suppression hearing was held on September 22, 1997, and Appellant's motion was denied from the bench. Following a bench trial held the next day, which incorporated testimony taken at the suppression hearing, Appellant was found guilty of possession of a controlled substance, possession of a controlled substance with the intent to deliver, and possession of a small amount of marijuana. The Commonwealth filed notice that it sought imposition of the mandatory minimum sentence with regard to Appellant's conviction for possession with intent to deliver a controlled substance, and Appellant was sentenced on December 5, 1997, to the mandatory minimum sentence of four (4) to eight (8) years imprisonment.

¶ 7 On December 29, 1997, Appellant filed this timely appeal, raising the following issues for our review: (1) Whether the lower court erred in denying Appellant's motion to suppress the cocaine and marijuana; (2) Whether the lower court erred in denying Appellant's motion to suppress her statements;⁶ and (3) Whether the lower court erred in sentencing Appellant to a mandatory minimum sentence.

¶ 8 Addressing the suppression issues first, the following standard of review has been enunciated:

When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous. Moreover, even if the suppression court did err in its conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence.

Commonwealth v. Holt, 711 A.2d 1011, 1014 (Pa.Super.1998) (citation omitted).

¶ 9 Pursuant to the standard of review enunciated in Holt, supra, we conclude that the suppression court's refusal to suppress the evidence or Appellant's statements is not erroneous in light of the evidence of record, viewed in a light most favorable to the Commonwealth as verdict winner.

¶ 10 Three types of police contact have been recognized by the courts of Pennsylvania:

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.

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