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Commonwealth v. Brogdon

Superior Court of Pennsylvania

October 3, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
LINZIE BROGDON Appellant

          Appeal from the Judgment of Sentence April 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001708-2017

          BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS [*] , P.J.E.

          OPINION

          STEVENS, P.J.E.

         Appellant, Linzie Brogdon, appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia following his conviction at a bench trial on the charges of persons not to possess firearms, firearms not to be carried without a license, carrying firearms on a public street, and resisting arrest.[1] After a careful review, we affirm.

         The relevant facts and procedural history are as follows: During the evening of October 29, 2016, on the 2900 block of Howard Street in Philadelphia, John Gonzalez was robbed at gunpoint. Appellant was arrested in connection with the robbery, and on July 10 and 14, 2017, Appellant, represented by counsel, litigated a motion to suppress the physical evidence seized by the police.[2]

         At the suppression hearing, the Commonwealth presented the testimony of Police Officer Stephen Bennis and Detective Matthew Hagy.[3] Specifically, Officer Bennis testified that, on October 29, 2016, "there was a robbery, point-of-gun, at the 2900 block of North Howard[.]" N.T., 7/10/17, at 8. Officer Bennis described the 2900 block of Howard Street as "[o]ne of the most violent, high drug areas in the 25th District and probably in the City." Id. at 17.

         On October 30, 2016, Detective Hagy and a sergeant informed Officer Bennis that, in connection with the robbery, the police were attempting to "identify an offender who went by the nickname of Fifty. And they provided [Officer Bennis with] a physical description of a tall, black male, approximately 6'4"/6'5"." Id. at 9. Officer Bennis testified that, based on the information provided to him, he had "an idea who they were talking about." Id.

         Specifically, Officer Bennis indicated that, in reference to the 2900 block of Howard Street, he was familiar with Appellant, who matched the description provided by Detective Hagy and the sergeant. Id. Officer Bennis explained that, during the past three years of his career, he has routinely patrolled Howard Street and, approximately once or twice a day, he observes Appellant in the 2900 block of Howard Street near the Chinese store or the bodega. Id. at 10, 17. Officer Bennis indicated Appellant resides on the 2800 block of Howard Street, which is just one block south of where the robbery occurred. Id. at 10.

         Officer Bennis testified he provided Detective Hagy and the sergeant with information regarding Appellant, and at some point during his tour of duty on October 30, 2016, he returned to the police station where his fellow police officers informed him witnesses had positively identified Appellant as being involved in the robbery. Id. Thereafter, at around 9:00 p.m. on October 30, 2016, as Detective Hagy and the sergeant were in the area of the robbery attempting to recover video, they observed Appellant. Id. at 11. Accordingly, they provided "flash information"[4] indicating they had observed the male, Appellant, who is also known as "Fifty." Id. Using the police radio, Officer Bennis asked for Appellant's specific location, and the sergeant indicated Appellant was "in the area of A and Tusculeum[, ]" which is approximately two blocks from the 2900 block of Howard Street. Id.

         Officer Bennis and his partner proceeded to the 2900 block of Howard Street where they saw Appellant travelling southbound on a bicycle. Id. Officer Bennis and his partner exited their patrol vehicle, stopped Appellant, removed him from the bicycle, and walked him towards the police vehicle. Id. at 11-12. As the officers escorted Appellant towards the back of the police vehicle, Appellant "locked up his arms and began reaching towards his jacket, actively resisting [the officers'] attempts to place him into custody." Id. at 12. As the two officers struggled to place handcuffs on Appellant, the trio fell to the ground, at which point Officer Bennis' partner placed Appellant's left hand into a handcuff. Id. As the officers attempted to place the handcuff on Appellant's right hand, Appellant continued to struggle and reach into his jacket. Id. With the additional assistance of Detective Hagy and the sergeant, who had arrived on the scene, the officers handcuffed Appellant's right hand behind his back, at which point a firearm fell out of Appellant's jacket. Id. at 13.

         The officers retrieved the firearm from the ground and discovered it was loaded with one live round in the chamber and four in the magazine. Id. at 14. The officers then searched Appellant's person and recovered thirteen clear, ziplock packets containing a blue glassy insert. The inserts were stamped "PR," and they contained an off-white powdery substance. Id. The police also seized a red and black mountain bicycle, which Appellant had been riding, and his canvas shoulder bag, as well as $36.00 from Appellant's person. Id. at 14-16.

         On cross-examination, Officer Bennis confirmed that, when he and his partner saw Appellant on the bicycle during the evening of October 30, 2016, they were in a marked patrol car. Id. at 19. Appellant was biking southbound on Howard Street while the officers were driving northbound. Id. Officer Bennis confirmed that he and his partner approached Appellant because they believed he had been involved in the previous night's robbery. Id. at 20. Officer Bennis indicated the officers did not approach Appellant with guns drawn; but rather, Officer Bennis stopped Appellant by quickly exiting the police vehicle and stepping in front of the bicycle, which Appellant was riding. Id. at 21. Officer Bennis confirmed that Appellant stopped the bicycle and Appellant dismounted with the officer "maintaining a hold on him." Id. at 22. Appellant then dropped the bicycle to one side and, as the officers attempted to handcuff him, Appellant struggled while attempting to reach into his jacket. Id. at 22-23. Officer Bennis reiterated that, during the struggle, a loaded handgun fell out of Appellant's jacket. Id. at 24.

         On redirect-examination, Officer Bennis explained that the handgun fell out of Appellant's left coat pocket, which was the pocket that Appellant kept attempting to reach into during the struggle. Id. at 25. On recross- examination, Officer Bennis admitted that, prior to stopping Appellant, he did not observe a "bulge" in Appellant's jacket; however, he testified "the interaction went from casual to fighting within a second or so." Id.

         Detective Hagy testified that he was the lead investigator assigned to the robbery case, and after gathering information from the victim, Mr. Gonzalez, he interviewed Reginald Carroll at approximately 4:00 a.m. on October 30, 2016. N.T., 7/14/17, at 6-7. Mr. Carroll informed Detective Hagy that "a male with the nickname of Fifty" was involved in the robbery; Mr. Carroll described "Fifty" as a black male who was 6'5" tall. Id. at 7, 10. Moreover, on October 30, 2016, at approximately 5:45 p.m., a witness, Anna Gomez, arrived at the police station of her own volition, and in the presence of Detective Hagy, she reported that "three males [were] involved [in the robbery] and the male that pushed John Gonzalez off the bike, his nickname was Fifty." Id. at 9.

         Detective Hagy testified that, in response to Mr. Carroll and Ms. Gomez informing him a man with the nickname of "Fifty" was involved in the robbery, he spoke with Officer Bennis, who routinely patrolled the area where the robbery occurred. Id. Detective Hagy indicated that:

Based on the flash and the nickname, [Officer Bennis] gave us the name of a male by the name of [Appellant]-I believe he just said by the [last] name of Brogdon. I was able to go into the police system and I found a male by the name of Brogdon who lived at 2955 Howard Street and also the male was approximately 6'5". Based on that, I developed two photo arrays with [Appellant] as one of the males.

Id. at 10. Detective Hagy confirmed that Appellant matched the description provided by Mr. Carroll. Id. at 11.

         Detective Hagy testified a fellow officer showed the photo arrays to Ms. Gomez at 7:30 p.m. and to Mr. Carroll at 7:55 p.m. on October 30, 2016. Id. at 12. The fellow officer reported that both individuals chose Appellant's photo from the array. Id. at 12-13. Detective Hagy then informed Officer Bennis and his partner of the positive identifications and requested they be on the lookout for Appellant, who was considered to be armed. Id. at 13. Meanwhile, Detective Hagy, along with the sergeant, proceeded to the Chinese store on the corner of Howard and Cambria to determine whether there was video of the robbery. Id. at 14.

         On cross-examination, Detective Hagy confirmed that, shortly after the robbery, he interviewed Mr. Gonzalez, who reported he was robbed by two males, one of whom pointed a handgun at him. Id. at 15-16. Mr. Gonzalez reported that one of the men was wearing black pants and a black hoodie while the other man was wearing blue jeans and a black hoodie. Id. Mr. Gonzalez indicated the two men had taken his wallet and cell phone. Id. Detective Hagy confirmed that Mr. Gonzalez told him he was pushed off of his bicycle during the robbery, he ran away on foot, and he flagged down a police vehicle. Id. at 17. The police then transported Mr. Gonzalez back to the scene. Id.

         Upon further cross-examination, Detective Hagy testified as follows:

Q. While they were transporting [Mr. Gonzalez] back to the scene, he actually points out to those officers, there is the man who pointed the gun at me, right?
A. Correct, he was actually in the back of our car at that point. He was too afraid to walk down the street on his own, so we put him in our unmarked car. While we were at the scene, and I was taking photographs of the scene and processing the scene, [Mr. Gonzalez] saw one of the males that he thought was involved, yes.
Q. Who was in the car that he pointed that male out to, if you were checking out the scene?
A. There were two officers that were at the scene with me-I would have to look, I forget their names-who drove off and stopped the male. And then they came over police radio and asked us to take [Mr. Gonzalez] to that location, I think it was the next block over. We went to that location and positively ID'd one of the males.
Q. The male that [Mr. Gonzalez] identified as having robbed [him was] Reginald Carroll, correct?
A. That is correct.
Q. Mr. Carroll was taken to East Detectives and also gave a statement?
A. Yes.
Q. That statement was videotaped, correct?
A. That's correct.
Q. There are no written records of that? There is not a 75483 for that, ...

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