Com. v. White

• Citation: 358 Pa.Super. 120,516 A.2d 1211
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Keith WHITE, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Joseph CRUMP, Appellee.
• Decision Date: 23 October 1986
• Court: Superior Court of Pennsylvania

Page 1211

516 A.2d 1211

358 Pa.Super. 120

COMMONWEALTH of Pennsylvania, Appellant, v. Keith WHITE, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. Joseph CRUMP, Appellee.

Superior Court of Pennsylvania.

Argued June 25, 1986.

Filed Oct. 23, 1986.

Susan V. Kahn, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Donald Bronstein, Philadelphia, for appellees.

Before CIRILLO, President Judge, and WICKERSHAM and KELLY, JJ.

KELLY, Judge:

This case involves an appeal by the Commonwealth of an order granting the appellees' motion to suppress. The trial court found that the appellees, Joseph Crump and Keith White, had been arrested without probable cause and that all physical evidence and statements gained as a result of the illegal arrest must be suppressed. Upon review, we find that the appellees were subjected to a reasonable investigatory detention and then properly arrested when a brief investigation led to the discovery of additional facts which established probable cause for a valid arrest. Accordingly, we reverse the suppression order.

It is well settled that when a suppression motion is granted, and when the Commonwealth asserts in good faith that the granting of the motion substantially impairs or effectively terminates the prosecution because of lack of evidence, the Commonwealth has the right to appeal the suppression order. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). The suppression order in the instant case meets the standard for appealability in that the Commonwealth has alleged in good faith and it is readily apparent from the record that suppression of the physical evidence and statements would substantially impair the prosecution of the appellees.

Our scope of review is limited primarily to questions of law. See Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978); Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977). We are bound by the suppression court's findings of fact, if those findings are supported by the record. Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985); Commonwealth v. Brown, 341 Pa.Super. 138, 491 A.2d 189 (1985). In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellees and so much of the evidence of the appellant which, as read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984).

However, we are "not bound by findings wholly lacking in evidence." Hamlin, 469 A.2d at 139, citing Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). Nor are we bound by the suppression court's conclusions of law. Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984); Commonwealth v. Scatena, 332 Pa.Super. 415, 481 A.2d 855 (1984).

A suppression hearing was conducted before the Honorable Albert W. Sheppard on November 4, 1985. The sole witness to testify at this hearing was Officer David Marmien. At the close of the hearing, Judge Sheppard specifically stated that he determined Officer Marmien "to be a credible officer." (N.T. 11/4/85 at 24-27). On February 27, 1986, Judge Sheppard filed an opinion in which he summarized the salient facts as follows:

On February 28, 1985, at 2:30 in the afternoon, Philadelphia Police Officers Marmien and Derein received a radio assignment to investigate males removing property from 2138 West Columbia Avenue (N.T. 8-9, 24). Within two minutes, the officers arrived at a vacant lot at 22nd and Nicholas Streets--a position one-half block south and one-half block west of the subject location--where they observed the two defendants walking west and carrying four, 4 ft. by 8 ft., formica sheets (N.T. 9-11).

The officers pulled their cars to the curb on 22nd Street, exited the vehicles, approached and stopped the males in the middle of 22nd Street (N.T. 12). They asked the defendants where they had gotten the sheets, and defendants replied that they were contractors and had bought the sheets in the 22 (twenty-two) hundred block of Columbia Avenue (N.T. 13-14).

At that point the officers placed defendants in one of the police cars (N.T. 14) in the custody of Officer Derein (N.T. 21), while Officer Marmien went to investigate the subject premises (N.T. 14-15). Some time later, when Officer Marmien returned to the police vehicles, he encountered a female who identified herself as the property owner (N.T. 16), and who identified the formica sheeting as belonging to her (N.T. 17).

On this record, this Court determined that, in fact, the defendants were arrested and that probable cause for that arrest did not exist.

Suppression Court Opinion at 2-3.

Upon review of the transcript of the suppression hearing, and in light of the suppression court's specific determination that Officer Marmien's testimony was credible, we are compelled to make two important corrections to the suppression court's summary of the salient facts.

First, the credible and uncontradicted testimony of Officer Marmien was that he and Officer Derein first observed the appellees in the vacant lot at a point ten to twenty feet from the fence surrounding 2138 Columbia Avenue, and twenty to thirty-five feet from the building at 2138 Columbia Avenue, which was formerly known as Eddy's Barbeque Chicken. To the extent that the suppression court's general findings may conflict with this testimony, ¹ the findings are "wholly lacking in evidence" and must be rejected. Hamlin, supra.

Secondly, the suppression court inaccurately characterized the length of the appellees' detention in the police car. Although the suppression court assigned no specific time interval to Officer Marmien's investigation of the premises at 2138 Columbia Avenue, the suppression court's opinion states:

Furthermore, the defendants were held, without their consent, in police custody for that period of time that it required Officer Marmien to walk to, and inspect the premises, and return to the police vehicles--a period of time not described in the record, but realistically not inconsiderable in duration.

Suppression Court Opinion at 5. The credible and uncontradicted testimony of Officer Marmien on this issue was as follows:

Q. How much time, from the time that you arrived at the scene initially, after responding to the radio call, to the time you placed the handcuffs on the defendant, how much time would you say elapsed, total?

A. Less than five minutes.

(N.T. 11/14/85 at 17). Thus the suppression court's characterization of the length of the detention is not only wholly lacking in support, but is also contrary to the credible, uncontradicted testimony of Officer Marmien on the issue. Hamlin, supra.

We now turn to our review of the legal conclusions drawn by the trial court. The suppression court, relying on its interpretation of Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1983), cert. denied 459 U.S. 1178, 103 S.Ct. 803, 74 L.Ed.2d 1025 (1983), concluded that the appellees were placed under arrest when they were directed to sit in the police car, and that at that time probable cause did not exist for an arrest. We cannot agree.

In Lovette, our Supreme Court held that placing defendant and his companions in a police vehicle and transporting them to the scene of an offense, without their consent and without exigent circumstances, constituted an illegal arrest without probable cause and that evidence gained as a result of the arrest must be suppressed notwithstanding the Commonwealth's contention that the seizure was intended to serve investigative purposes rather than to arrest and charge the suspect. See Lovette, 450 A.2d at 980-81.

The majority in Lovette rejected the Commonwealth's contention that the transportation of the defendant and his companions was a valid investigative detention pursuant to the exception to the probable cause requirement announced by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Our Supreme Court explained:

The Terry exception has been most frequently applied in instances involving merely an involuntary detention, see e.g. Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977); Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 (1977); Commonwealth v. Bailey, 460 Pa. 498, 333 A.2d 883 (1975); Commonwealth v. Richards, [458 Pa. 455, 327 A.2d 63 (1974) ]; Commonwealth v. Pollard,450 Pa. 138, 299 A.2d 233 (1973); Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). Here we have the added element of a transportation of the suspects from the place of the initial encounter without exigent circumstances to support that action. The police had the option of detaining the suspects at the site of the initial encounter and either bringing the complainant to the site for his identification of the questioned articles or taking those items to him. Either situation would present a much stronger case for the position the Commonwealth presently urges. The Commonwealth stresses the limited area traversed in the transportation of appellant. This fact only highlights the ease with which the identification could have been made without the movement of the suspects, which increased the intrusiveness of the encounter.

Lovette, 450 A.2d at 980. (Emphasis added).

In the instant case, the appellees were detained at the site of the initial encounter and not transported. Thus, according to the majority in Lovette, the Commonwealth has presented a much stronger case in the instant case than was presented to our Supreme Court in Lovette.

There...