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[U] Commonwealth v. Zachary

Superior Court of Pennsylvania

March 12, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RAHEEM ZACHARY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered April 20, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: MC-51-CR-0042939-2011

BEFORE: ALLEN, MUNDY and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Raheem Zachary, appeals from the order entered April 20, 2012, in the Court of Common Pleas of Philadelphia County denying his petition for writ of certiorari, following his conviction in the Municipal Court of Philadelphia[1] for possession of marijuana.[2] Appellant alleges the Municipal Court erred in denying his pretrial suppression motion. We affirm.

The trial court summarized the facts based upon the notes of testimony from the motion to suppress hearing:

1. On October 7, 2011, at approximately 9:00 a.m., Officers [Jason] Troccoli and Zukauskas were on a tour of duty on the 2100 block of South Taney Street. Motion to Suppress Hearing/Trial, February 8, 2012, at pp. 6-7. The officers were dressed in bike uniform and were on bikes that day. Id. at 7-8.
2. There, the officers noticed that [Appellant] was walking northbound on a public sidewalk. Id. at 8. Earlier that day, the officers had received information from the Homicide Unit that [Appellant] was wanted for investigation in reference to a recent homicide that occurred in the area. Id. at 7.
3.The officers then approached [Appellant] on their bikes; they wanted to speak with him briefly and ask him some questions. Id. at 8, 13-14.
4.Officer Troccoli pulled up in front of [Appellant] to speak with him. Id. at 8.
5. [Appellant] was standing on the sidewalk at that time, and Officer Troccoli and his partner were standing in the street adjacent to [Appellant]. Id. 11-12.
6. The Officers noticed that [Appellant] had his left hand clenched. Id. at 8.
7. Officer Troccoli was concerned that [Appellant] might have a concealed weapon or small gun in his clenched hand. Id. at 14. He then asked [Appellant] what was in his hand and to open his hand. Id. at 8.
8. [Appellant] volunteered that he had some weed in his hand and opened his hand. Id. The officers, in plain view, saw four small, clear zip-lock baggies containing a green leafy substance, called marijuana. Id.
9. Officer Troccoli and his partner then recovered the four small, clear zip-lock baggies containing the alleged marijuana. Id.
10.The officers then placed [Appellant] in custody. Id.
11. Officer Troccoli explained that, prior to his seeing the marijuana, [Appellant] would have been free to leave or terminate the encounter at any time he desired. Id. at 13. [Appellant] could have left the area if he wanted to, as he was not under arrest and the officers did not have a warrant for his arrest. Id. They simply wanted to speak with him and ask him some questions. Id.

Trial Ct. Op., 6/4/13, at 3-4. The suppression court denied Appellant's motion to suppress. Following a colloquy, Appellant elected to proceed by way of stipulated trial in the Municipal Court of Philadelphia.[3] N.T. at 19. The municipal court found him guilty.

Appellant filed a petition for writ of certiorari in the court of common pleas seeking review of the denial of his motion to suppress.[4] The trial court held a hearing on April 20, 2012. Following the hearing, the court denied his petition for writ of certiorari. N.T., 4/20/12, at 6. This timely appeal followed. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion.

Appellant raises the following issue for our review:

Did not the trial court err in denying [Appellant's] motion to suppress physical evidence where the officer lacked the requisite reasonable suspicion to stop and frisk [Appellant], who was not seen involved in any criminal activity, and who was seized when the officers called to him by name, hemmed him in with their bicycles, commanded that he tell them what was in his hand and ordered that he open his closed hand, and were not the resultant confiscation of marijuana and statement that he was holding marijuana the fruit of the illegal seizure?

Appellant's Brief at 3.

Appellant argues that the trial court erred in denying his motion to suppress because he "was seized at the moment the police officers called to him by name causing him to stop . . . ." Id. at 12. Appellant contends that a reasonable person, in the same circumstances, would not feel free to leave. Id. at 14. Further, he avers that "even if this Court finds the initial stop legally supported, the frisk of [A]ppellant was unlawful because the officer lacked a specific, articulable belief that [he] was armed and dangerous." Id. at 21. Appellant suggests the inculpatory statement that he was holding marijuana and the seizure of the marijuana were the fruit of the poisoned tree. Id. at 12.

This Court has stated:

[I]n addressing a challenge to a trial court's denial of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the [Commonwealth] prevailed in the suppression court, we may consider only the evidence of the [Commonwealth] and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010) (citation omitted). "It is within the suppression court's sole province as fact[-]finder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003) (citation omitted).

The legal standard of proof required by a police officer when engaging or interacting with a citizen varies depending on whether the citizen has been detained, and if so, the degree of the detention and the circumstances surrounding the interaction. There are three basic levels of interaction between citizens and police officers, and the accompanying standard of proof needed for each level is firmly established:
The first category, a mere encounter or request for information, does not need to be supported by any level of suspicion, and does not carry any official compulsion to stop or respond. The second category, an investigative detention, derives from Terry [v. Ohio, 392 U.S. 1, 23– 26, (1968)] and its progeny: such a detention is lawful if supported by reasonable suspicion because, although it subjects a suspect to a stop and a period of detention, it does not involve such coercive conditions as to constitute the functional equivalent of an arrest. The final category, the arrest or custodial detention, must be supported by probable cause.
No constitutional provision prohibits police officers from approaching a citizen in public to make inquiries of them. However, if the police action becomes too intrusive, a mere encounter may escalate into an investigatory [detention] or seizure. The term mere encounter refers to certain non-coercive interactions with the police that do not rise to the level of a seizure of the person under the fourth amendment. For example, a mere encounter transpires when an officer approaches a citizen on a public street for the purpose of making inquiries.
In contrast, [a]n investigative detention occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. In other words, in view of all the circumstances, if a reasonable person[5] would have believed that he was not free to leave, then the interaction constitutes an investigatory detention. An investigatory detention triggers the constitutional protection of the Fourth Amendment to the United States Constitution, Article I, Section 8 of the Pennsylvania Constitution, and the prerequisites for such a detention as set forth in Terry.

Cauley, 10 A.3d at 325-26 (citations and quotation marks omitted).

In Commonwealth v. Coleman, 19 A.3d 1111 (Pa.Super. 2011), a police officer was responding to the report of a robbery in progress involving two black males wearing green hooded jackets. Id. at 1114. Upon arriving at the scene, the officer observed a male fitting the description and asked if he had a gun. Id. At the time, the defendant "fumbled with his hands in his pocket." Id. "Concerned for his safety, [the officer] asked [the defendant] to raise his hands, but [he] failed to comply and kept 'fumbling' in his pocket. At that point, [the officer] attempted to bring [the defendant] over to the police van." Id. at 1116.

The defendant contended that the court erred in denying his suppression motion because the initial stop was an investigative detention unsupported by reasonable suspicion. Id. The Coleman Court disagreed reasoning:

Both the United States and Pennsylvania Supreme Courts have held that the approach of a police officer followed by questioning does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (police can approach people at random, ask questions, and seek consent to search) (collecting case); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in the street or in another public place, by asking him is he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen"); Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 11 (2003) ("the mere approach of police followed by police questioning ... does not amount to a seizure"); In re D.M., 566 Pa. 445, 781 A.2d 1161, 1164 (2001) ("the police may approach anyone in a public place to talk to him, without any level of suspicion' "). Thus, the initial questioning of [the defendant] was a mere encounter.
Further, the fact that [the officer] told [the defendant] to take his hands out of his pockets did not turn the encounter into a seizure.

Id. at 1116 (emphases added).

In the case sub judice, the trial court opined:

[The issue raised on appeal] is misleading. This court, in its review of the record kept below, did not find that [Appellant] was seized by the officers when they approached him on the date in question. Furthermore, this court, in its review of the record kept below, did not find that the officers "commanded" that [Appellant] open his closed hand. The record clearly reflects that the officers had asked [Appellant] a question in the course of a "mere encounter." [Appellant], who was free to leave at any time, was not "seized." He volunteered incriminating information which led to his subsequent arrest. . . .
Here, the record clearly shows that [Appellant] was not unlawfully detained or "seized" in the circumstances. On the date in question, the officers merely approached [Appellant] on their bikes to ask him some questions. . . . The officers were standing next to [Appellant] at the time of their encounter but they did not box him in or otherwise prevent him from walking away. At the motion to suppress hearing, Officer Troccoli made it quite clear that [Appellant] would have been free to terminate the encounter any time he desired they did not have a warrant and he was not under arrest. Again, the officer and his partner had merely approached [Appellant] to ask him some questions.
During the course of their initial interaction with [Appellant], the officers noticed that his left hand was clenched. . . . [Appellant] voluntarily informed the officers that he "had some weed in his hand." He then opened his left hand. The officers, in plain view, saw that [Appellant] had four small, clear zip-lock baggies containing a green leafy substance, alleged marijuana. At that time, their initial lawful encounter had ripened into probable cause for a warrantless arrest, and they placed [Appellant] in custody.
The officers did not violate [Appellant's] constitutional rights by merely approaching him as he was walking . . . on a public sidewalk. Further, they did not violate his constitutional rights by asking him some questions. In addition, the record clearly reflects that the officers did not display or show their weapons or use any force during their initial interaction with [Appellant]. The officers did not exhibit a threatening or authoritative attitude or raise their voices at [Appellant]. There is no evidence that they touched [Appellant] or had any physical contact with him. They did not command [Appellant] to stop or insist that he remain in the immediate vicinity. His movement was not constrained and he was not "pinned in" or otherwise confined. Absent evidence of coercive conduct, this Court finds that this questioning did not transform the lawful mere encounter into an unlawful investigative detention.

PCRA Ct. Op., 6/4/13, at 4, 9-10. We agree no relief is due.

At the time the officers initially questioned Appellant, it was a mere encounter. See Coleman, 19 A.3d at 1116. The fact that the officer asked Appellant what was in his hand did not turn the encounter into a seizure. See id. We discern no error by the trial court. See Cauley, 10 A.3d at 325.

Order affirmed.

Judgment Entered.


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