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Commonwealth v. Thompson

Superior Court of Pennsylvania

May 22, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
OLLIE THOMPSON, Appellant

Argued February 25, 2014.

Page 479

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Page 481

Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0000635-2010. Before TRENT, J.

Ruth A. Moyer, Philadelphia, for appellant.

Jonathan M. Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., PANELLA, J., and LAZARUS, J. OPINION BY BENDER, P.J.E.

OPINION

Page 482

BENDER, P.J.E.

Appellant, Ollie Thompson, appeals from the judgment of sentence of 5-10 years' incarceration imposed following his conviction for possession with intent to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30). Appellant contends the trial court erred in denying his motions to suppress the seized evidence, and to dismiss the charges against him pursuant to Pa.R.Crim.P. 600. Appellant also claims that the evidence was insufficient to sustain his conviction, the verdict was against the weight of the evidence, and the trial court erred in limiting his cross-examination of a Commonwealth witness. After careful review, we vacate Appellant's illegal sentence and remand for an evidentiary hearing.

The trial court summarized the facts adduced at trial as follows:

The Commonwealth presented evidence of an investigation surrounding suspected narcotics activity and police observation of a narcotics transaction. Police Officer Joseph Ellingsworth, badge number 5349, testified regarding his role in a narcotics investigation on December 3, 2009. Officer Ellingsworth conducted narcotics surveillance of a convenience store parking lot at the 7200 block of Brous Avenue. Surveillance was initiated after police received numerous complaints of suspected narcotics activity from the store owner and neighbors.

Page 483

Within fifteen minutes of setting up surveillance, Officer Ellingsworth observed a red minivan pull into the parking lot. The driver of the minivan, later identified as Selena Bradsher, remained inside the vehicle after parking. Approximately five to ten minutes later a white Cadillac entered the parking lot. The driver, later identified as the Appellant, summoned Ms. Bradsher to his vehicle by waving and yelling. Officer Ellingsworth then followed the Appellant as he proceeded to drive eastbound on Cottman Avenue. The Appellant turned onto nearby Battersby Street and parked near the curb. The Appellant exited his vehicle and entered a white sport utility vehicle parked nearby. The Appellant sat in the rear passenger seat of the vehicle which contained three additional occupants. Officer Ellingsworth exited his vehicle and maneuvered behind a nearby bush approximately fifteen to twenty feet from the targeted vehicle for further observation. Officer Ellingsworth was able to clearly observe the vehicle interior. [One of t]he passenger[s] of the vehicle, later identified as Matthew Furentino, handed the Appellant an unknown amount of United States currency. After counting the money, the Appellant exited the vehicle and retrieved a clear baggie from deep grass at the base of a nearby iron fence. The Appellant then tossed the baggie into the vehicle and returned to his own vehicle. The vehicle receiving the baggie immediately left the area.
Both vehicles were subsequently stopped for investigation within a few minutes. Sergeant Michael Cerruti, badge number 8649, stopped the white sport utility vehicle near the 7100 block of Brous Street. Sergeant Cerruti recovered a Ziploc baggie containing alleged narcotics from Mr. Furentino's rear waistband. A police department chemical lab report yielded the following results regarding the substances recovered: forty green pills of Oxycontin; twenty-eight yellow pills of Alprazolam; eighteen yellow pills of Oxycontin. The total weight of the Oxycontin was 13.042 grams. Following the stop by Sergeant Cerruti, Police Officer Michael Schaffer, badge number 3219, stopped the Appellant's vehicle at the direction of Officer Ellingsworth. Police recovered United States currency from numerous areas of the Appellant's clothing. The total amount of currency recovered was $2,004 in the following denominations: one fifty-dollar bill; eighty-nine twenty-dollar bills; nineteen one-dollar bills.

Trial Court Opinion (TCO), 5/24/13, at 1-3.

Following his arrest on December 3, 2009, Appellant was charged with PWID and related offenses. He filed a motion to suppress the seized contraband as well as a motion to dismiss pursuant to Rule 600, both of which were denied by the trial court after a hearing held on October 24, 2011. Appellant's jury trial commenced on October 25, 2011. The jury convicted Appellant of PWID on October 27, 2011. On January 19, 2012, the trial court sentenced Appellant to a mandatory sentence of 5-10 years' incarceration pursuant to 18 Pa.C.S. § 7508(a)(2)(ii).

Appellant filed a timely pro se notice of appeal. The trial court initially filed a Pa.R.A.P. 1925(a) opinion determining that Appellant waived all of his potential claims on appeal due to his failure to file a Rule 1925(b) concise statement of errors complained of on appeal (concise statement). Appellant subsequently filed a motion to remand with this Court, arguing that he was unable to draft a timely concise statement due to a change in counsel and the fact that the notes of testimony had yet to be transcribed. On July 10, 2012, we remanded to the trial court, directing the

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court to order the transcription of the notes of the testimony and to permit Appellant to file a concise statement within 21 days of the date that the notes of testimony were provided to him. Appellant then filed a timely concise statement and the trial court issued a supplemental Rule 1925(a) opinion. Appellant now presents the following claims for our review:

I. Under the Fourth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 8 of the Pennsylvania Constitution, did the trial court err in failing to suppress all evidence obtained as a fruit of the warrantless search and seizure of Appellant?
II. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 9 of the Pennsylvania Constitution, did the trial court err in concluding that no violation of Pa.R.Crim.P. 600 had occurred where more than 365 days of time not attributable to the defense elapsed between Appellant's arrest and his trial?
III. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 9 of the Pennsylvania Constitution, was the evidence insufficient to sustain Appellant's conviction for Possession With the Intent to Deliver a Controlled Substance (" PWID" )?

IV. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 9 of the Pennsylvania Constitution, was Appellant's PWID conviction against the weight of the evidence?

V. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 9 of the Pennsylvania Constitution, did the trial court err in barring trial counsel from cross-examining a police officer about, inter alia, his monetary compensation and experience testifying?

Appellant's Brief at 4.

Appellant's first argument posits that the trial court erred in denying his suppression motion. He claims that the police lacked reasonable suspicion to support his initial detention. Alternatively, he asserts that police did not have probable cause to effectuate his subsequent arrest.

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before 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 suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. McAdoo, 2012 PA Super. 118, 46 A.3d 781, 783-84 (Pa. Super. 2012) (quoting Commonwealth v. Hoppert, 2012 PA Super. 21, 39 A.3d 358, 361-62 (Pa. Super. 2012)).

Interactions with police are classified as mere encounters, investigative detentions, or formal arrests.

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Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323, 1331 (Pa. Super. 1988).

Police may engage in a mere encounter absent any suspicion of criminal activity, and the citizen is not required to stop or to respond. If the police action becomes too intrusive, a mere encounter may escalate into an investigatory stop or a seizure. If the interaction rises to the level of an investigative detention, the police must possess reasonable suspicion that criminal activity is afoot, and the citizen is ...

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