Commonwealth of Pa. v. Brown

Citation23 A.3d 544,2011 PA Super 67
PartiesCOMMONWEALTH of Pennsylvania, Appelleev.Marcus BROWN, Appellant.
Decision Date04 April 2011
CourtSuperior Court of Pennsylvania

OPINION TEXT STARTS HERE

George B. Dawson, Holmes, for appellant.William R. Toal, III, Assistant District Attorney, Media, for Commonwealth, appellee.BEFORE: FORD ELLIOTT, P.J., MUSMANNO, BENDER, BOWES, DONOHUE, SHOGAN, ALLEN, OLSON, and OTT, JJ.:OPINION BY DONOHUE, J.:

Marcus Brown (Brown) appeals from the judgment of sentence entered on June 6, 2008 following his conviction of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), aggravated assault of a police officer, 18 Pa.C.S.A. § 2702(a)(3), and possession of an instrument of crime (“PIC”), 18 Pa.C.S.A. § 907(a). On appeal, Brown raises two suppression issues as well as weight and sufficiency of the evidence claims. For the reasons set forth herein, we affirm the judgment of sentence.

The relevant facts and procedural history of this case are as follows. On April 5, 2006, at approximately 11:30 a.m., Uma Golla (“Golla”) was working as a cashier at an Exxon gas station and convenience store located in East Lansdowne, Delaware County, Pennsylvania. While two customers got tea in the back of the store, Brown, who wore a black coat and a black hat or bandanna, entered and stood near an ATM machine. After the two customers left, Brown asked Golla to show him the location of the sunflower seeds, at which time he pulled a gun out of a brown plastic bag and pointed it at Golla's face. Throwing her a white plastic bag, Brown demanded that Golla give him money and threatened to kill her if she did not. Golla yelled for her manager. When the manager appeared, Brown ran out of the store.

Meanwhile, Chief John Zimath (“Chief Zimath”) of the East Lansdowne Police Department was on patrol in an unmarked police vehicle near the Exxon station. At approximately 11:30 a.m., he observed Brown standing on the sidewalk peeking suspiciously from behind a dumpster at the Exxon station, with a white plastic bag protruding from his coat pocket. After two customers finished pumping gas and drove away from the station, Chief Zimath saw Brown walk quickly into the convenience store. After approximately one minute, Chief Zimath spotted Brown as he ran out of the store, through a parking lot, and into a nearby alley.

Chief Zimath, still inside his vehicle, followed Brown, who jumped into a maroon minivan that was parked on the street and began to drive away. He radioed dispatch to call the Exxon to see if they had had any problems inside. Chief Zimath pulled the minivan over and asked for Brown's driver's license and registration card. When asked from where he was coming, Brown told Chief Zimath that he was en route from a friend's house.

While obtaining Brown's license and registration, Chief Zimath received a call from dispatch informing him that they had spoken to an employee at the Exxon, but that due to a language barrier they could not yet discern if anything had happened inside. At this point, Chief Zimath called for backup officers to come wait with Brown while he investigated the events at the convenience store. Officer David Schiazza (“Officer Schiazza”) and Officer Albert DeBella (“Officer DeBella”) responded as backup officers.

Chief Zimath drove back to the Exxon and spoke with Golla, who told him that an African–American man had attempted to rob the store by pointing a gun at her and demanding that she fill a white plastic bag he had thrown at her with money. After speaking with Golla, Chief Zimath called Officer DeBella and advised him to take Brown into custody. Just before Chief Zimath's call, Officer Schiazza observed what appeared to be a black handgun inside Brown's minivan on the floor behind the driver's seat. (Police later discovered that it was actually a toy gun colored in with black magic marker, with its barrel taped.)

Officer DeBella asked Brown to step out of the minivan and place his hands behind his back. As Officer Schiazza attempted to handcuff Brown, Brown pulled away. Officer DeBella attempted to stop Brown from fleeing, but Brown grabbed the officer and threw him to the ground. With Officers Schiazza and DeBella in pursuit, Brown ran across the street and onto the lawn of a neighboring house. After being tackled by Officer Schiazza, Brown struggled and flailed his arms, striking the officer on the arm, shoulder and mouth. Chief Zimath responded to a call for backup and found Officers Schiazza and DeBella attempting to subdue Brown. Eventually, the officers handcuffed Brown and recovered the toy gun, a black coat, a black knit hat, and a white knit hat from the minivan. Shortly after the police apprehended Brown, Golla identified Brown as the man who had attempted to rob the convenience store. The police then arrested Brown.

Prior to trial, Brown filed a motion to suppress the toy gun and clothing seized from the minivan. After two evidentiary hearings, the trial court denied the motion to suppress. A jury found Brown guilty of the above-listed crimes and the trial court sentenced him to an aggregate term of 147 to 294 months of imprisonment.1 Brown filed post-sentence motions, which the trial court denied.

Brown filed a timely appeal with this Court, and by opinion dated March 2, 2009, we affirmed the judgment of sentence. With respect to the trial court's denial of Brown's motion to suppress the evidence seized from the van, we concluded that this ruling was harmless error. In response, the Commonwealth filed an application for reargument/reconsideration, contending that the panel's finding of error on the suppression issue did not reflect existing law. On May 11, 2010, this Court granted reargument en banc.

On en banc review, we will address the following issues Brown raises:

1) Whether the court erred in allowing the prosecution to present evidence of the gun, and clothing found in [Brown's] automobile, after an illegal stop and subsequent illegal search.

2) Whether the jury's verdict was against the weight of evidence, and

3) Whether there was insufficient evidence to find Brown guilty of the crimes of which he was convicted.

Appellant's Brief at 4. We also address the issue the Commonwealth frames in its Supplemental Brief filed for purposes of en banc review:

Are exigent circumstances required in Pennsylvania for a warrantless seizure of evidence from a vehicle to be lawful under the plain view doctrine.

Commonwealth's Supplemental Brief at 1.

Suppression Issues

In connection with our consideration of the suppression issues raised by the parties, we begin by setting forth our standard of review:

The admissibility of evidence is a matter addressed to the sound discretion of the trial court and [...] an appellate court may only reverse upon a showing that the trial court abused its discretion. [W]e consider whether the record supports the suppression courts' factual findings, and the legal conclusions drawn therefrom, by reviewing the prosecutions' evidence and only so much of the defenses' evidence as remains [uncontradicted] within the context of the record as a whole. Factual findings unsupported by the evidence may be rejected, but if the record supports the suppression courts' factual findings, reversal of a suppression courts' actions is justified only if the inferences and legal conclusions drawn therefrom are erroneous.

Commonwealth v. Turner, 982 A.2d 90, 91–92 (Pa.Super.2009) (quoting Commonwealth v. Harris, 888 A.2d 862, 868 (Pa.Super.2005), appeal denied, 593 Pa. 746, 931 A.2d 656 (2007)).Vehicle Stop and Investigative Detention

We first address Brown's contention that Chief Zimath's stopping of Brown's van and the subsequent detention of Brown that followed violated his rights under the Fourth Amendment of the U.S. Constitution 2 and Article I, Section 8 of the Pennsylvania Constitution.3 Brown claims that Chief Zimath “did not have reasonable suspicion that criminal activity was afoot,” and that as a result the vehicle stop and his detention (while Chief Zimath continued his investigation) were unconstitutional. Appellant's Brief at 12.

Contact between the police and the citizenry fall within three generally recognized classifications: mere encounter, investigative detention and custodial detention or arrest.

The first of these, 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 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. Collins, 950 A.2d 1041, 1046 (Pa.Super.2008) ( en banc ) (quoting Commonwealth v. Mendenhall, 552 Pa. 484, 488, 715 A.2d 1117, 1119 (1998)).

In its written opinion prepared pursuant to Pa.R.A.P. 1925(a), the trial court explained that the interaction between Chief Zimath and Brown was an investigative detention, and that Chief Zimath had reasonable suspicion to conduct such a detention:

In the instant case, Chief Zimath had reasonable suspicion that criminal activity was afoot when he observed [Brown's] actions. He first saw [Brown] in the parking lot of a gas station, peeking around a dumpster in the direction of the convenience store with a white plastic bag protruding from his coat pocket. [Brown] then walked quickly toward the store, where he remained only briefly and then ran out of the store at full speed. [Brown's] surveillance of the store, in conjunction with his flight from the store, combined with Chief Zimath's experience as a police officer, are factors that establish reasonable suspicion that criminal activity was afoot. Therefore, Chief Zimath was justified in pursuing, stopping and investigating [Brown].

Trial Court Opinion, 12/30/08, at 8–9...

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