Commonwealth v. Dixon, 2010 PA Super 109 (Pa. Super. Ct. 6/15/2010), No. 574 EDA 2007.

CourtSuperior Court of Pennsylvania
Writing for the CourtStevens
Citation2010 PA Super 109
Decision Date15 June 2010
Docket NumberNo. 574 EDA 2007.

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2010 PA Super 109
DEIYO DIXON, Appellant.
No. 574 EDA 2007.
Superior Court of Pennsylvania.
Filed: June 15, 2010.

Appeal from the Judgment of Sentence February 1, 2007 In the Court of Common Pleas of Philadelphia County, Criminal at No(s): CP-51-CR-0303761-2006.



¶ 1 Deiyo Dixon appeals from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County. We have granted en banc review to address suppression and sentencing issues raised by Dixon. Following careful examination of the record before us, as well as pertinent case and statutory law, we find no error on the part of the lower court, and affirm the judgment of sentence.

¶ 2 The underlying facts of this case are not in dispute. Firearms charges were leveled against Dixon following events which occurred on December 4, 2005. The Affidavit of Probable Cause issued for Dixon's arrest describes those events as follows:

While in plain clothes assignment as 23bd2 the officers were patrolling the area, 1200 North 29th St., on 12-04-05 12:25 pm; when they observed a possible drug transaction between the

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offender and another male, Arthur Kett. The officers exited their vehicle to approach the males, P/O Nelson observed Kett holding in plain view a small zip-loc pkt of possible marijuana, P/O Parker then went to the other male to stop him for investigation, he immediately adopted a hostile attitude ignored the officer's request to stop; a struggle ensued during which time a small blk and silver semi auto pistol fell from the defendant waist area. The offender fled and after a short foot pursuit was lost in the area of 2815 Stile St The officers then came to Central Detectives, with the revolver weapon, identified as a .40 Cal Taurus Millennium with a total of ten rounds ser # svc-59203.

Record check of this weapon revealed it stolen on 06-20-2004, under OCA 04-25-58539 from the residence of Juan Jose Pitre. Additionally the officer identified the other offender as Deiyo Dixon of 2815 Stile St, whose [sic] had a prior arrest history under PPN 932769.

Further the assigned conducted a court history of the offender which revealed that he is currently under Probation for Narcotics violations, under DC 04-23-045231, Through 05-16-2007W

Affidavit of Probable Cause signed 12/6/05.

¶ 3 Dixon was arrested on December 6, 2005. He filed an omnibus pretrial motion seeking suppression of evidence on several grounds. Following an October 4, 2006 hearing, the learned Honorable Leon Tucker denied the suppression motion, concluding that under the totality of the circumstances, Dixon's arrest was with probable cause. N.T. 10/4/06 at 23-28.

¶ 4 A waiver trial was conducted, and Dixon was found guilty of possessing a firearm in violation of 18 Pa.C.S.A. § 6105,1 carrying a firearm without a

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license in violation of 18 Pa. C.S.A. § 6106,2 and carrying a firearm on a public street in Philadelphia in violation of 18 Pa.C.S.A. § 6108.3 On

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February 1, 2007, he was sentenced to two and a half years to 5 years imprisonment for violation of Section 6105, and a consecutive four years probation for violation of Section 6106. N.T. 2/1/07 at 12. No further penalty was imposed for his violation of Section 6108. Id.

¶ 5 On February 28, 2007, Dixon appealed the judgment of sentence, and was ordered to file a Rule 1925(b) statement of matters complained of on appeal.4 In an unpublished memorandum, the three judge panel of this Court originally assigned to hear Dixon's appeal determined that the Commonwealth had failed to sustain its burden of proof at the suppression hearing, and, therefore, Judge Tucker erred in refusing to grant Dixon's suppression request. Commonwealth v. Dixon, No. 574 EDA 2007, unpublished memorandum at 1-2 (Pa. Super. filed March 13, 2008). Dixon's judgment of sentence was vacated and the matter was remanded for a new trial. Id.5

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¶ 6 Before that occurred, however, the Commonwealth filed a timely application for panel reconsideration or en banc reargument, and en banc reargument was granted on May 22, 2008, without limitation as to the issues to be addressed.6 Dixon now asks us to determine:

1. Whether, where the Commonwealth fails to put forth any evidence to meet its burden of proof on a properly presented motion to suppress physical evidence, the trial court erred in denying the motion?

2. Whether, even given the Commonwealth's misinterpretation of the presented ground for the motion to suppress evidence, reasonable suspicion was lacking where there was no exchange of anything and where there were no facts presented to establish a belief that appellant was armed and dangerous?

3. Did not the trial court err in sentencing Appellant to two consecutive sentences for a single criminal act in violation of his right not "to be twice put in jeopardy of life or limb?

Appellant's brief at 3.

¶ 7 Dixon's first two allegations pertain to the denial of his suppression motion.

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. ... [W]e must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when

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read in the context of the record as a whole." Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (Pa. 2007), cert. denied, 552 U.S. 894, 128 S. Ct. 211, 169 L. Ed. 2d 158 (2007). Those properly supported facts are binding upon us and we "may reverse only if the legal conclusions drawn therefrom are in error." Id.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009). See also Commonwealth v. Hernandez, 594 Pa. 319, 328, 935 A.2d 1275, 1280 (2007). "Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence." Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa. Super. 2007) (citing Commonwealth v. Andersen, 753 A.2d 1289, 1291 (Pa. Super. 2000)). See also Commonwealth v. Laatsch, 541 Pa. 169, 172, 661 A.2d 1365, 1367 (1995).

¶ 8 In the matter at hand, Judge Tucker entered his findings of fact on the record at the conclusion of the suppression hearing, in compliance with Pa.R.A.P. 581(I). N.T. 10/4/06 at 23-24. A review of those findings shows that they are supported by the record with the minor exception that Dixon was arrested on December 6th, not December 4th. As such, we turn to an assessment of the legal conclusions Judge Tucker has drawn from those facts, first addressing the propriety of his determination that, contrary to Dixon's assertion, the Commonwealth did not run afoul of Rule 581(H).7

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¶ 9 Rule 581 as a whole "addresses the right of a criminal defendant to move to suppress evidence alleged to have been obtained in violation of his or her rights, and sets forth the procedure attendant to the disposition of a suppression motion." Commonwealth v. Baumhammers, 960 A.2d 59, 76 (Pa. 2008).8 The Rule imposes burdens on both the defendant and the Commonwealth.

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¶ 10 In refusing to suppress the evidence here, Judge Tucker correctly referenced the burdens placed on the parties by Rule 581. Rule 1925(a) Opinion at 3-4. He then addressed how the particular procedural circumstances before him affected the application of Rule 581, and concluded that because Dixon failed to comply with Rule 581(D), the burden imposed on the Commonwealth by Rule 581(H) never shifted, and suppression was thus denied. Id. at 4-5.

¶ 11 After careful consideration of the procedural history of this case, and the applicable case and statutory law, we find Judge Tucker's refusal to suppress the evidence proper, albeit on slightly different grounds.9 Specifically, we do not find that Dixon wholly failed to comply with Rule 581(D), such that the Commonwealth was entirely relieved of the burden placed on it by Rule 581(H). Instead, we find that that Dixon's partial failure to comply with Rule 581(D) resulted in the imposition of a lesser burden on the Commonwealth. Further, we find that the Commonwealth has met that burden.

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¶ 12 As Judge Tucker recognized, Rule 581(D) requires that a motion seeking suppression "state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof." Pa.R.Crim.P. 581(D); Commonwealth v. McDonald, 881 A.2d 858, 860 (Pa. Super. 2005) (emphasis added).

¶ 13 We agree with Judge Tucker that Dixon's motion did not comply with the requirements of Rule 581(D).10 Initially, it did not state "specifically and with particularity" the evidence sought to be suppressed, but instead merely indicated that Dixon sought the suppression of "physical evidence." Motion filed 4/19/06. It does not appear to be disputed that the gun taken as evidence on December 4th was the only piece of "physical evidence" seized pertaining to the charges leveled against Dixon, however. ¶ 14 Dixon's motion also failed to state with specificity and particularity the "facts and events" in support of his suppression request. Indeed, as a review of the motion quickly reveals, it sets forth no facts or events, even in

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the most basic form. Although Dixon's interactions with the police occurred on two dates — December 4th and December 6th, the motion did not state if it pertained to one or both dates. As we noted above, however, since the only evidence which could be the subject of a motion to suppress was taken on December 4th, the motion can only pertain to the events of that date.

¶ 15 Finally, and of greatest significance, is the manner in which the motion...

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