Commonwealth v. Brown, 2010 PA Super 27 (Pa. Super. Ct. 3/2/2010)
| Decision Date | 02 March 2010 |
| Docket Number | No. 2351 EDA 2008.,2351 EDA 2008. |
| Citation | 2010 PA Super 27 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee, v. MARCUS BROWN, Appellant. |
| Court | Pennsylvania Superior Court |
Appeal from the Judgment of Sentence June 6, 2008, Court of Common Pleas, Delaware County, Criminal Division at No. CP-23-CR-0005741-2006.
Before: GANTMAN, DONOHUE and CLELAND, JJ.
OPINION BY DONOHUE, J.:
¶ 1 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 a suppression issue, as well as weight and sufficiency claims. After careful review, we affirm.
¶ 2 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 were getting tea in the back of the store, Brown entered the store and stood near an ATM machine. After the two customers left, Brown asked Golla to show him where the sunflower seeds were located. Brown, who was wearing a black coat and a black hat or bandanna, pulled a gun out of a brown plastic bag and pointed the gun at Golla's face. Throwing her another plastic bag, which was white, Brown demanded that Golla give him money and threatened to kill her if she did not. Golla yelled for her manager. After the manager appeared, Brown ran out of the store.
¶ 3 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, who was wearing a black coat and a black knit hat, standing on the sidewalk peeking suspiciously from behind a dumpster at the Exxon, with a white plastic bag protruding from his coat pocket. Two customers finished pumping gas and drove away from the station. Brown then walked quickly into the convenience store. Brown was inside for approximately one minute, after which he ran out of the store, through a parking lot, and into a nearby alley.
¶ 4 Chief Zimath, still inside his vehicle, followed Brown, who jumped into and drove away in a maroon minivan that was parked on the street. The officer also 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 where he was coming from, Brown told Chief Zimath that he was coming from a friend's house.
¶ 5 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, could not 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.
¶ 6 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, throwing her a white plastic bag, and demanding 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.)
¶ 7 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. He then ran across the street and onto the lawn of a neighboring house, with Officers Schiazza and DeBella in pursuit. After being tackled by Officer Schiazza Brown struggled and flailed his arms, striking the officer in the arm, shoulder and mouth. Chief Zimath responded to a call for backup and found Officers Schiazza and DeBella rolling around on the ground, attempting to subdue Brown. Eventually, Brown was handcuffed and taken into custody. The toy gun was recovered from inside of his minivan, as were a black coat, a black knit hat and a white knit hat. Shortly after the police apprehended Brown, Golla identified Brown as the man who had attempted to rob the convenience store. Brown was arrested and charged with multiple offenses.
¶ 8 Prior to trial, Brown filed a motion to suppress the evidence seized from his car. After two evidentiary hearings, the motion was denied. Following a jury trial, Brown was convicted of the crimes listed above, and sentenced to an aggregate term of 147 to 294 months of imprisonment.1 Post-sentence motions were filed and denied. This timely appeal followed, in which Brown contends that he was entitled to a new trial where:
1) The court erred in denying Brown's motion to suppress and allowing the Commonwealth to present at trial physical evidence found in Brown's minivan after an illegal stop and subsequent illegal search,
2) The jury's verdict was against the weight of evidence, and
3) There was insufficient evidence to find Brown guilty of the crimes of which he was convicted.
Appellant's Brief at 4, 10. We address these claims seriatim.
Suppression Issues
¶ 9 For his first claim on appeal, Brown contends that his rights under the Fourth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution were violated when police stopped his vehicle and detained him, and then seized the toy gun and clothing from his vehicle without a warrant. Appellant's Brief at 11-13.
¶ 10 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 court's factual findings, and the legal conclusions drawn therefrom, by reviewing the prosecution's evidence and only so much of the defense's 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 court's factual findings, reversal of a suppression court's actions is justified only if the inferences and legal conclusions drawn therefrom are erroneous.
Commonwealth v. Turner, ___ A.2d ___, 2009 WL 2962856, *1 (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
¶ 11 We first address Chief Zimath's stopping of Brown's vehicle and the detention which followed. It is well established that contact between the police and the citizenry fall within three general classifications: mere encounter, investigative detention and custodial detention or arrest. Commonwealth v. Donaldson, 786 A.2d 279, 281 (Pa. Super. 2001), appeal denied, 569 Pa. 679, 800 A.2d 931 (2002).
The least restrictive level of interaction between a citizen and an officer is a `mere encounter' or request for information by an officer. The mere encounter does not have to be supported by any level of suspicion and carries with it no requirement that citizens either stop or respond. A more restrictive stop, known as an `investigative detention'[,] subjects a person to a stop and a period of detention. In order to justify the restraint on liberty imposed by this type of encounter, the investigating officer must have a reasonable belief that the person detained has been involved in criminal activity. Finally, the third level of encounter is an arrest or `custodial detention,' which must be supported by probable cause that an offense has been or is being committed.
Commonwealth v. Bennett, 827 A.2d 469, 477 (Pa. Super. 2003) (citations omitted).
¶ 12 In its written opinion submitted to this Court 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.
¶ 13 We agree, and conclude that the record supports the trial court's factual findings. While stopped at a traffic light, Chief Zimath observed Brown peeking in a suspicious manner from behind a dumpster area at the Exxon in question. N.T., 7/18/07, at 6-7. The officer noted that Brown, who was standing five or six feet away, was wearing a black knit cap and a three-quarter length leather coat, even though it was April and not very cold outside. Id. at 7.
¶ 14 After two customers left after pumping gas, Chief Zimath...
To continue reading
Request your trial