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[U] Commonwealth v. Allowsing

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DANIEL ALLOWSING, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence May 21, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0047045-2010

BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J. [*]

MEMORANDUM

OTT, J.

Daniel Allowsing appeals the judgment of sentence of 15 months' probation entered on May 21, 2012, in the Philadelphia County Municipal Court following his conviction of possession of a controlled substance (cocaine).[1] On appeal, Allowsing challenges the denial of his motion to suppress. For the reasons that follow, we affirm.

The facts underlying Allowsing's conviction are as follows. On October 30, 2010, at approximately 11:55 a.m., Philadelphia Police Officer Charles Mellon was responding to an unrelated police call on the 3300 block of Mutter Street, when he noticed Allowsing walking towards him from an abandoned lot. N.T., 5/21/2012, at 6-7. Officer Mellon described the encounter as follows:

I was traveling southbound on 3300 block of Mutter towards Westmoreland, at which time I noticed [Allowsing] coming through the – there's an abandoned lot in the middle of the block, a couple houses are knocked down.
[Allowsing] started walking towards me. I asked him if he was okay, he was kind of walking, like he had a hard time walking. You could tell he wasn't like all together there. I thought something happened, so I asked him if he was okay, at which time, I noticed in his jacket pocket he had a plethora of syringes sticking from him.
I told [Allowsing] to stop and put the needles at the steps or patio that was there, at which time he pulled the needles out, a small clear bag – a plastic baggie, used for narcotics fell from his pocket, as well, at which time he was placed under arrest.

Id. at 7-8. Officer Mellon testified he had been a police officer for nine years, and that the particular block of Mutter Street on which he encountered Allowsing was a "high-crime, high-narcotics area, " to which his unit was deployed "several times a day." Id. at 8. He explained that he asked Allowsing to remove the needles "[j]ust out of safety for myself" because some of the needles were open and exposed. Id. at 8-9. Furthermore, Officer Mellon testified that the 3300 block of Mutter Street was a "high block for heroin[]" and the needles protruding from Allowsing's pocket were the type used to shoot heroin. Id. at 9.

Allowsing was arrested and charged with one count of possession of controlled substances. On May 21, 2012, he litigated a suppression motion in municipal court, arguing that Officer Mellon lacked reasonable suspicion to stop and frisk him. At the conclusion of testimony and argument by counsel, the municipal court denied the motion to suppress. Thereafter, the case proceeded immediately to a stipulated trial, and the municipal court found Allowsing guilty of possession of cocaine. That same day, the court sentenced Allowsing to 15 months' probation.

On June 19, 2012, Allowsing filed a petition for writ of certiorari in the Court of Common Pleas contending that the municipal court erred in denying his motion to suppress.[2] The trial court denied the writ, and this timely appeal followed.[3]

Preliminarily, we note that, in the case sub judice, we are reviewing the trial court's decision to deny Allowsing's petition for writ of certiorari.

A lower court's decision on the issuance of a writ of certiorari will not be disturbed absent an abuse of discretion. Certiorari provides a narrow scope of review in a summary criminal matter and allows review solely for questions of law. Questions of fact, admissibility, sufficiency or relevancy of evidence questions may not be entertained by the reviewing court on certiorari. A petition for a writ of certiorari provides an aggrieved party an alternative to a trial de novo in the Court of Common Pleas.

Commonwealth v. Elisco, 666 A.2d 739, 740-741 (Pa.Super. 1995) (internal citations omitted).[4]

On appeal, Allowsing contends he was subjected to an unlawful stop and seizure when Officer Mellon ordered him to empty the syringes from his pocket because the officer's actions constituted an investigatory detention not supported by reasonable suspicion that criminality was afoot. He further argues the subsequent discovery of the cocaine was tainted by the initial illegal stop.

Appellate review of an order denying a motion to suppress evidence is well-settled:

[W]e must determine whether the record supports the lower court's factual findings and the "legitimacy of the inferences and legal conclusions drawn from those findings." As the trial court in the instant matter found for the prosecution, we will consider only the testimony of the prosecution's witnesses and any uncontradicted evidence supplied by the defense. If the evidence supports the trial court's factual findings, we may reverse only if there is a mistake in the legal conclusions drawn by the suppression court.

Commonwealth v. Coleman, 19 A.3d 1111, 1115 (Pa.Super. 2011) (internal citations omitted).

After a thorough review of the record, the parties' brief, and the applicable law, we conclude that the trial court provided a comprehensive and well-reasoned discussion of its decision. See Trial Court Opinion, 6/12/2013, at 6-11 (finding that (1) during a mere encounter, Officer Mellon observed Allowsing emerging from an empty lot in a high drug crime area, having difficulty walking and appearing to be "not 'all there;'" (2) when the officer approached to determine if Allowsing was in distress, he noticed, in plain view, a plethora of used and new needles sticking out of Allowsing's pocket; (3) based on the totality of the circumstances the officer developed reasonable suspicion that Allowsing was engaged in criminal activity, namely, possession of illegal drugs, and he "understandably" asked Allowsing to remove the syringes for safety purposes; and (4) when Allowsing removed the syringes, a bag of cocaine secreted on Allowsing's person fell to the ground in plain view, providing Officer Mellon with probable cause to arrest).

Therefore, we conclude that the issue raised by Allowsing on appeal is meritless, and we adopt the sound reasoning of the trial court as dispositive.

Judgment of sentence affirmed.

Judgment Entered.

Image Omitted.


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