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COMMONWEALTH PENNSYLVANIA v. KEVIN BROWN (07/31/89)

submitted: July 31, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN BROWN, APPELLANT



Appeal from the Judgment of Sentence of January 19, 1989, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 8709-1107.

COUNSEL

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

McEwen, Beck and Melinson, JJ. McEwen, J., concurs in the result.

Author: Beck

[ 388 Pa. Super. Page 188]

This is an appeal by Kevin Brown from a judgment of sentence imposed by the Court of Common Pleas of Philadelphia County following his conviction for possession of a controlled substance and possession with intent to deliver a controlled substance. The sole question presented is whether the trial court erred by failing to suppress a bag of cocaine that appellant discarded after he was approached by two police detectives. After careful consideration, we affirm the judgment of the trial court.

Our standard of review is well established.

When reviewing the denial of a motion to suppress our responsibility is "to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." . . . In making this determination, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Granger, 364 Pa. Super. 453, 457, 528 A.2d 244, 246 (1987) (quoting Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976)). Viewed in the light most favorable to the Commonwealth, the relevant facts are as follows.

[ 388 Pa. Super. Page 189]

On July 24, 1987, at about 10:15 A.M. Detective Furlong of the Philadelphia Police Department saw appellant park a car on the 1600 block of Point Breeze Avenue in Philadelphia and walk across a vacant lot onto the 2200 block of Fernon Street. Detective Furlong was aware that appellant previously had been arrested for burglary and he decided to keep a close watch on appellant to see if appellant would attempt another burglary. Furlong contacted his partner, Detective Feldmyer, and summoned him for assistance.

During the following half-hour, Furlong observed appellant walking up and down Fernon Street and talking to people. At about 10:50 A.M., appellant started to walk across the vacant lot toward his car which was parked at the curb of Point Breeze Avenue which abuts the vacant lot. At this point, Furlong began walking very quickly in appellant's direction. Meanwhile, Detective Feldmyer drove an unmarked police car over the curb and onto the sidewalk that bordered the vacant lot and stopped parallel to and a few feet in front of appellant's car. On the way to his car, appellant walked around Feldmyer's vehicle, pretended to trip, and tossed a plastic bag under his own car. Feldmyer said, "How you doing, Kevin." and appellant responded "What's up." Furlong retrieved the plastic bag and noticed that it contained small tubes packed with white powder. Furlong then placed appellant under arrest.

Appellant argues that the bag of cocaine should have been suppressed because it was abandoned as a result of unlawful police conduct. In order to determine whether the conduct of the police was unlawful, we must focus on the contact between appellant and the detectives immediately before appellant discarded the cocaine. We must decide whether Feldmyer's action in parking on the sidewalk next to appellant's vehicle when combined with Furlong's action in ...


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