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Commonwealth of Pennsylvania v. Brandon Clemens

April 15, 2013

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
BRANDON CLEMENS, APPELLANT



Appeal from the Judgment of Sentence November 23, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010772-2009.

The opinion of the court was delivered by: Olson, J.:

J-S79011-12

BEFORE: OLSON, WECHT and COLVILLE,*fn1 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, 915 A.2d 1122, 1134 (Pa. 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;*fn2 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 ...


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