Commonwealth v. Clemens

• Decision Date: 15 April 2013
• Citation: 2013 PA Super 85,66 A.3d 373
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brandon CLEMENS, Appellant.
• Court: Pennsylvania Superior Court

66 A.3d 373

2013 PA Super 85

COMMONWEALTH of Pennsylvania, Appellee

v.Brandon CLEMENS, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 17, 2012.

Filed April 15, 2013.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OLSON, WECHT and COLVILLE,^* JJ.

OPINION BY OLSON, J.:

Appellant, Brandon Clemens, appeals from the judgment of sentence entered on November 23, 2011. We affirm.

On appeal, Appellant claims that the lower court erred when it denied his pre-trial motion to suppress. In reviewing such a challenge, this Court “must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole.” Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007) (internal citations omitted). Observed in this light, the relevant facts are as follows.

On the morning of June 27, 2009, City of Philadelphia Police Officer Ivan Centeno was on routine patrol and driving a marked police vehicle down the 800 block of South Cecil Street in Philadelphia. Officer Centeno's partner, Officer Clifford Gilliam, Jr., sat in the vehicle's passenger seat. N.T. Suppression Hearing, 4/27/11, at 6–7. As Officer Centeno testified, the 800 block of South Cecil Street is a residential area that is “very high” in crime and “very violent.” Id. In fact, during the suppression hearing, Officer Centeno testified that he had patrolled the area for the prior five years and was personally aware of “numerous shootings [and] stabbings” in the area, as well as “nonstop” open-air narcotics sales. Id.

Officer Centeno testified that, at approximately 11:00 a.m. on June 27, 2009, while driving down the 800 block of South Cecil Street:

I observed [Appellant engage in] a hand-to-hand transaction with an unknown male. I [then] observed [Appellant] here turn his head in the direction of my police vehicle. [After looking directly at the marked police vehicle, Appellant] turn[ed] around, r[an] straight to [the residential house of] 831 [South Cecil Street,] up the steps onto the porch, [and] s[at] on a lawn chair.

Id. at 8. Appellant then “grabbed a newspaper and acted like he was reading the newspaper.” N.T. Trial, 9/29/11, at 168.

Even though Officer Centeno did not observe money or objects pass between the two individuals, Officer Centeno testified that—based upon his training and years of experience—he was of the conviction that he had just witnessed a narcotics transaction. N.T. Suppression Hearing, 4/27/11, at 9. Therefore, Officer Centeno parked his vehicle and, accompanied by Officer Gilliam, the officers approached 831 South Cecil Street. Officer Centeno testified that Officer Gilliam accompanied him—and did not pursue the suspected purchaser of the narcotics—because Appellant “was more of a hazard for us” and because, if Appellant had “a weapon or something,” the officers wanted to avoid a “one-on-one situation.” N.T. Trial, 9/30/11, at 4–5.

According to Officer Centeno, when the officers approached the front steps of 831 South Cecil Street, Officer Centeno:

asked [Appellant] if he lived at that location. He stated no ... he did not live at that location. [Officer Centeno then] asked [Appellant] if he had any identification on him, stating who he was. He said no. [Officer Centeno] said do you live on the block.... [Appellant] couldn't prove any identification whatsoever.

N.T. Trial, 9/29/11, at 165–166.

Officer Centeno testified that, at this point, he “asked [Appellant] to [stand up and] turn around ... [so that he could] pat [Appellant] down for officer safety ... for [Officer Centeno's own] safety and [for Officer Centeno's] partner's safety.” N.T. Suppression Hearing, 4/27/11, at 9 and 16. As Officer Centeno testified, he believed that Appellant might be armed and dangerous—and that a frisk for officer safety was thus necessary—because of a variety of circumstances, including the fact that: Officer Centeno knew the area was high in violent crime and Officer Centeno was personally aware of “the violence that happens there, the shootings that happen there, all the drug sales, everything together;” Officer Centeno had just witnessed a hand-to-hand transaction that, as his years of experience and training had taught him, was most likely a felony narcotics transaction; ¹ from Officer Centeno's experience, drug dealers were often armed and dangerous; after engaging in the hand-to-hand transaction, Appellant saw Officer Centeno's marked police vehicle and then immediately (and strangely) ran onto the porch of 831 South Cecil Street and pretended to read a newspaper; when asked, Appellant admitted that he did not live at 831 South Cecil Street—which is a residential house—and Appellant provided Officer Centeno with no explanation as to why he was sitting on someone else's residential property; Appellant provided Officer Centeno with no identification and would not tell Officer Centeno where he lived; and, throughout the encounter with Officer Centeno, Appellant acted “nervous [ly].” N.T. Suppression Hearing, 4/27/11, at 5–9, 19, 20, and 22–23; N.T. Trial, 9/29/11, at 163–168; N.T. Trial, 9/30/11, at 4–5.

In response to Officer Centeno's demand, Appellant stood up and turned around for the frisk. N.T. Trial, 9/29/11, at 166–167. As Officer Centeno testified:

As soon as [Appellant] spread his legs, a clear plastic sandwich bag with a knot, containing 31 heat-sealed Ziploc type packets with a black clover stamp design on them, fell from his pants. He had on like [ ] tan[,] khaki shorts. They came from his leg area, fell down to the ground on the porch. He then step[ped] on it with his foot [and tried] to hide it.

...

I immediately, as soon as I saw it, knew what it was. It was narcotics. It was bags of crack [cocaine] inside the sandwich bag. It had little stamps on it, each one. He tried to step on it with his foot, so I couldn't see it and I looked toward my partner to let him know, look, he just stepped on the narcotics. He has to be placed under arrest.

N.T. Suppression Hearing, 4/27/11, at 9; N.T. Trial, 9/29/11, at 166–167. Further, Officer Centeno testified that he saw the bag of narcotics fall from Appellant before he even laid a hand on Appellant's person. N.T. Suppression Hearing, 4/27/11, at 9; N.T. Trial, 9/29/11, at 169–170.

Later testing revealed that the heat-sealed packets contained a total of 2.213 grams crack cocaine. N.T. Trial, 9/30/11, at 33. Moreover, following Appellant's arrest, Officer Centeno searched Appellant incident to the arrest. This search revealed that Appellant possessed $328.00 in “balled up” dollar bills. N.T. Trial, 9/29/11, at 172. The bills were in “all different quantities and [Appellant had] different amounts in each [of the four] pocket[s on his khaki shorts].” Id.; N.T. Trial, 9/30/11, at 29.

The Commonwealth charged Appellant with possession of a controlled substance and possession of a controlled substance with the intent to deliver (“PWID”).² Prior to trial, Appellant filed a motion to suppress all physical evidence against him. Within this motion, Appellant first claimed that the police did not have reasonable suspicion to subject him to an investigatory detention. Appellant also claimed that, even if the initial stop was proper, the police did not have justification to frisk Appellant, as they did not have any reason to believe that Appellant was armed and dangerous. Appellant's Suppression Motion, 11/20/09, at 1; N.T. Suppression Hearing, 4/27/11, at 3–4.

Following a suppression hearing, the suppression court denied Appellant's motion. First, the suppression court concluded that, based upon Officer Centeno's observations and experience, Officer Centeno had reasonable suspicion to subject Appellant to an investigatory detention, as Officer Centeno had reasonable suspicion to believe that Appellant had just engaged in a felony drug transaction. Id. at 38. Second, the suppression court concluded that the totality of the circumstances supported Officer Centeno's suspicion that Appellant might have possessed a weapon. Id. at 39. Therefore, since the suppression court concluded that both the detention and the “frisk” were justified, the suppression court denied Appellant's motion. Id.

Appellant proceeded to trial, where the jury found him guilty of possession of a controlled substance and PWID. On November23, 2011, the trial court sentenced Appellant to a term of three to six years in prison for PWID and, on December 13, 2011, Appellant filed a timely notice of appeal to this Court. Now on appeal, Appellant raises the following claim: ³

Did not the [suppression] court err in denying [A]ppellant's motion to suppress physical evidence under both the [United States and Pennsylvania c]onstitutions[,] where [A]ppellant was seized absent reasonable suspicion or probable cause when the observing officer saw [A]ppellant and another individual with their arms outstretched, but did not witness any transaction, and then followed [A]ppellant onto a porch and ordered him to stand up to be frisked?

Appellant's Brief at 3.

Our Supreme Court has declared:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of 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 legal conclusions drawn therefrom are in error.

Eichinger, 915 A.2d at 1134 (internal citations omitted). “It is within the suppression court's sole province as factfinder to pass on the...