Commonwealth v. Brooks

• Docket Number: 333 EDA 2022,J-S33043-22
• Decision Date: 23 March 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. KASIIM BROOKS Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. KASIIM BROOKS Appellant

No. 333 EDA 2022

No. J-S33043-22

Superior Court of Pennsylvania

March 23, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 28, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002553-2019

Joseph D. Seletyn, Esq.

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.

Kasiim Brooks ("Brooks") appeals from the judgment of sentence imposed after a jury found him guilty of two counts possession of a controlled substance with intent to deliver ("PWID").^[1] We affirm the convictions but vacate the judgment of sentence and remand for resentencing.

The trial court summarized the factual history as follows:

On February 8, 2019[,] at approximately 3:05 a.m., Officer Kevin Gamber (Officer Gamber) was issuing parking tickets in the area of the 7200 block of Lamport Road in Upper Darby^[2] when he noticed [Brooks] unconscious in a car parked in a marked fire zone. The license plate came back as an Enterprise rental car. . . . Officer Gamber attempted to wake [up Brooks].

Upon [Brooks] waking, he rolled the window down and Officer Gamber requested [Brooks] exit the vehicle to ensure that he was okay and to determine if he was intoxicated. During a pat down search, Officer Gamber felt [two] cell phones in [Brooks's] pocket [and noticed that Brooks was wearing an expensive watch]. . . .

* * * *

When Officer Gamber questioned [Brooks] on why he was in the area so late at night[, Brooks] responded that he was on his way to visit his grandmother and then fell asleep in his car but could not give his grandmother's home address. Officer Gamber questioned [Brooks] in order to determine his level of intoxication, if any. Officer Gamber determined that [Brooks] was not intoxicated. [Brooks] fully cooperated with Officer Gamber during their interaction.

After backup officers arrived on the scene and [Brooks] was identified, Officer Gamber asked for permission to search the vehicle, which was granted. The three other officers who arrived on the scene did not interact with [Brooks] at this time and none of their vehicles had flashing lights. Officer Gamber [searched the car] and located 98 baggies of controlled substances[, later identified as fentanyl and cocaine,] in the inner compartment area of the driver['s] side door[, and the officer arrested Brooks.^[3] The time between stop and arrest lasted about 10 to 15 minutes.

Trial Court Opinion, 4/5/22, at 2, 4 (citations to the record omitted).

Brooks filed a motion to suppress the evidence recovered from the car asserting that he did not voluntarily consent to the search. The trial court denied the suppression motion following a hearing, and Brooks proceeded to a jury trial. The jury found Brooks guilty of PWID (fentanyl) and PWID (cocaine). On September 28, 2021, the trial court sentenced Brooks to consecutive sentences of imprisonment of seventy-two to 114 months^[4] for PWID (fentanyl) and thirty to sixty months for PWID (cocaine). Brooks filed a timely post-sentence motion, which the trial court denied. Brooks timely appealed, and both he and the trial court complied with Pa.R.A.P. 1925.

Brooks raises the following issues, which we have reordered for our review:

1. Whether the trial court erred in denying the pretrial motion to suppress physical evidence?

2. Whether the evidence was insufficient to sustain the verdict because the evidence failed to establish con[s]tructive possession of the unlawful narcotics secreted in the rental vehicle?

3. Whether the court abused its discretion in sentencing [Brooks] to an unduly harsh and excessive sentence?

Brooks's Brief at 10 (reordered).

In his first issue, Brooks challenges the validity of his consent to the search of the vehicle and claims that the trial court erred in denying his suppression motion. On appeal from the denial of a suppression motion:

Our standard of review . . . is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; 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 findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en banc) (internal citation omitted). When examining a ruling on a pretrial motion to suppress, appellate courts are limited to reviewing only the evidence presented at the suppression hearing. See Commonwealth v. Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017).

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect private citizens from unreasonable searches and seizures by government officials. See Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). "A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies. One such exception is consent, voluntarily given." See id. (internal citations omitted). The Commonwealth bears the burden of proving, by a preponderance of the evidence, that a challenged search was constitutional. See Commonwealth v. McCleary, 193 A.3d 387, 390 (Pa. Super. 2018); see also Pa.R.Crim.P. 581 (H).

In consent cases, a court's analysis begins with an examination of the interaction between the defendant and the police. See Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa. Super. 2021). If the underlying interaction between a defendant and a police officer is lawful, then a court analyzes the voluntariness of the defendant's consent, that is, whether the consent "is the product of an essentially free and unconstrained choice - not the result of duress or coercion, express or implied, or a will overborne - under the totality of the circumstances." Commonwealth v. Valdivia, 195 A.3d 855, 862 (Pa. 2018) (internal citations and quotations omitted). However, if an unlawful seizure precedes the consensual search, the exclusionary rule will require suppression of evidence unless there is "a sufficient break in the causal chain[,]" i.e., that the search did not exploit the prior illegality, and the consent was voluntary. Strickler, 757 A.2d at 889 (internal citation omitted). In examining the lawfulness of an interaction between police and an individual, our Supreme Court has stated:

We have long recognized three types of interactions that occur between law enforcement and private citizens. The first is a mere encounter, sometimes referred to as a consensual encounter, which does not require the officer to have any suspicion that the citizen is or has been engaged in criminal activity. This interaction also does not compel the citizen to stop or respond to the officer. A mere encounter does not constitute a seizure, as the citizen is free to choose whether to engage with the officer and comply with any requests made or, conversely, to ignore the officer and continue on his or her way. The second type of interaction, an investigative detention, is a temporary detention of a citizen. This interaction constitutes a seizure of a person, and to be constitutionally valid police must have a reasonable suspicion that criminal activity is afoot. The third, a custodial detention, is the functional equivalent of an arrest and must be supported by probable cause. A custodial detention also constitutes a seizure.

No bright lines separate these types of encounters, but the United States Supreme Court has established an objective test by which courts may ascertain whether a seizure has occurred to elevate the interaction beyond a mere encounter. The test, often referred to as the "free to leave test," requires the court to determine whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.

See Commonwealth v. Adams, 205 A.3d 1195, 1199-200 (Pa. 2019) (internal citations, some quotations, and brackets omitted).

Additionally, where an officer completes an initial, lawful detention of an individual and then asks for consent, a court must review all coercive aspects of the subsequent interaction, including factors such as:

1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, . . . thus suggesting to a citizen that his movements may remain subject to police restraint; 9) the presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor; and 10) whether the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008) (en banc) (internal citations and quotations omitted);^[5] accord Commonwealth v. Freeman, 757 A.2d 903, 906-07 (Pa. 2000).

On appeal, Brooks...