Opinion
591 EDA 2022 1560 EDA 2022 J-A28014-23 J-A28015-23
01-11-2024
COMMONWEALTH OF PENNSYLVANIA v. TREQUAN ANDERSON Appellant COMMONWEALTH OF PENNSYLVANIA v. TREQUAN ANDERSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 18, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005303-2019, CP-51-CR-0005305-2019
BEFORE: OLSON, J., STABILE, J., and COLINS, J. [*]
MEMORANDUM
OLSON, J.
Appellant, Trequan Anderson, appeals from the judgment of sentence entered February 18, 2022. We affirm Appellant's judgment of sentence at 5303-2019, 591 EDA 2022. We quash Appellant's appeal at 5305-2019, 1560 EDA 2022.
The February 18, 2022 judgment of sentence effected two trial court dockets, CP-51-CR-0005303-2019 (5303-2019) and CP-51-CR-0005305-2019 (5305-2019), and Appellant filed notices of appeal at both dockets, in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), overruled in part, Commonwealth v. Young, 265 A.3d 462 (Pa. 2021). The appeal from the judgment entered at trial court docket number 5303-2019 was lodged in this Court at 591 EDA 2022. The appeal from the judgment entered at trial court docket number 5305-2019 was originally filed in this Court at 592 EDA 2022. As we shall explain in greater detail below, however, this Court subsequently quashed the appeal docketed at 592 EDA 2022 and the matter returned to the trial court for further proceedings. We then docketed a later appeal from trial court docket number 5305-2019 at 1560 EDA 2022. The record confirms that Appellant litigated identical suppression claims at both trial court dockets and that the trial court denied relief in both cases. Appellant, who has filed identical briefs at both appeals, challenges the trial court's disposition of his suppression claims on the same grounds in both matters. We shall therefore consolidate Appellant's claims pursuant to Pa.R.A.P. 513 and address his claims in a single memorandum. See Pa.R.A.P. 513 (allowing consolidation where two or more distinct appeals present the same question).
The following facts were established at a suppression hearing convened on December 7, 2021. On March 7, 2019, at approximately 6:30 p.m., Officer Khalil Nock of the Philadelphia Police Department heard a series of gunshots coming from the area of 6500 Upland Street in Philadelphia, Pennsylvania. Officer Nock responded to the scene and observed an overturned Jeep, as well as a woman attempting to remove her small child from the vehicle. After the woman removed her child from the Jeep, she frantically screamed to Officer Knock that "[t]hey came from there," pointing "towards the direction of 6500 Upland Street," east of her then-current location. N.T. Suppression Hearing, 12/7/21, at 9. The woman also stated that she saw "multiple males wearing all black" and a "tan or green Buick Regal or Century" with New Jersey temporary tags prior to the shooting. Id. at 9-10. Officer Nock relayed this "flash" information to all responding officers over police radio. Id. at 10.
Officer Chris Swinarski and his partner, Officer Lopez, responded to the flash information relayed by Officer Nock and began to survey the area. They eventually spotted a green Buick "that was double-parked on the 6300 block of Regent Street," which is approximately two and one-half blocks from 6500 Upland Street, the scene of the shooting. Id. at 13. Upon spotting the Buick, the officers made a U-turn and began to travel eastbound on Regent Street, following the vehicle. As they traveled behind the green Buick, the officers observed that its' New Jersey temporary tags were expired. As such, the officers "activated [their vehicle] lights to conduct a [traffic stop]," which occurred "just before 65th and Chester Avenue" at approximately 7:08 p.m. Id. at 14 and 24. Officer Swinarski then "activated [his] takedown lights," which are "two bright [lights] that illuminate the inside of the vehicle," and his "flood light." Id. at 15. As Officer Swinarski exited his patrol vehicle, he observed "the operator of [the green Buick]" who "turn[ed] around in [his] seat[]" and looked at Officer Swinarski "like a deer in headlights." Id. at 15-16. Before Officer Swinarski reached the vehicle, however, the operator "took off" in the Buick and "fled from [the officers]," proceeding "northbound all the way into Yeadon, [Pennsylvania]." Id. at 18. While Officers Swinarski and Lopez pursued the vehicle, they informed other responding officers of its flight via police radio. Officers Swinarski and Lopez lost sight of the green Buick for approximately two minutes, but swiftly located it after it struck a tree, resulting in a "significant car accident." Id. The officers approached the vehicle, but it was unoccupied, with blood inside.
In response to Officers Swinarski and Lopez's radio call, Officer Timothy Bollarton and his partner commenced a patrol in the area of 65th Street in Delaware County, Pennsylvania. As Officer Bollarton traveled along 70th Street, he observed Appellant with blood on his face, "walking on the sidewalk around the corner [from] Church Lane and MacDade Boulevard," which was approximately one block away from where the green Buick crashed. Id. at 28. Officer Bollarton exited his vehicle with his flashlight and approached Appellant. As he did so, Officer Bollarton "noticed that the cut [on Appellant's forehead] was [] still actively bleeding" and that there were "little pieces of glass in the cut and in [Appellant's] hair." Id. at 29. Officer Bollarton stopped Appellant and asked what happened to him. Appellant initially claimed to have been in a fight, but then stated he was a passenger in a vehicle. Officer Bollarton then "frisked [Appellant], handcuffed [Appellant], put [Appellant] in the back of his patrol car[] and transported [Appellant] one block away to the Buick crash site." Trial Court Opinion, 1/13/23, at 3. "At the crash site, Officers Swinarski and Lopez identified [Appellant] as the Buick's driver." Id. at 4.
Thereafter, Officer Bollarton and his partner transported Appellant to Mercy Hospital to treat the cut on his forehead. Once Appellant was medically cleared for release, Officer Jeffrey Kelly transported him to the 18th District police headquarters. There, Appellant was informed of his Miranda rights, which he waived, and eventually confessed to firing a gun at the victim's vehicle and to being "the driver who fled from the police in the Buick." Id. at 5.
Miranda v. Arizona, 384 U.S. 436 (1966).
On August 9, 2019, the Commonwealth charged Appellant via criminal information at trial court docket number 5303-2019 with attempted murder; aggravated assault, possession of a firearm prohibited; criminal conspiracy; firearms not to be carried without a license; carrying a firearm in public in Philadelphia; simple assault; recklessly endangering another person ("REAP"); and fleeing or attempting to elude a police officer. The Commonwealth also charged Appellant via criminal information at docket number 5305-2019 with attempted murder; aggravated assault; criminal conspiracy; simple assault; and REAP.
On November 15, 2021, Appellant filed a motion to suppress at both trial court dockets, claiming that Officer Bollarton detained him without lawful justification and that Officer Swinarski's on-scene identification took place under unduly suggestive conditions or was otherwise not supported by an independent basis. Based upon the foregoing, Appellant claimed that the statements he later provided to the officers and Officer Swinarski's identification of him were subject to suppression. A suppression hearing was held on December 7, 2021. The trial court denied Appellant's motion that same day.
The matter proceeded to a bench trial on December 9, 2021, after which Appellant was convicted of two counts of attempted murder, two counts of aggravated assault, two counts of criminal conspiracy, carrying a firearm without a license, carrying a firearm in public in Philadelphia, and fleeing or attempting to elude a police officer. On February 18, 2022, the trial court sentenced Appellant to an aggregate sentence of nine to 18 years' incarceration, followed by four years' probation.
18 Pa.C.S.A. §§ 901(a), 2702(a), 903(c), 6106(a)(1), 6108, and 75 Pa.C.S.A. § 3733(a), respectively.
On February 24, 2022, Appellant filed timely notices of appeal to this Court at both trial court dockets. That same day, Appellant's counsel moved to withdraw from representation at both trial court dockets. On February 25, 2022, the trial court granted counsel leave to withdraw and appointed appellate counsel for Appellant at both trial court dockets. In addition, the trial court ordered counsel to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). The trial court's 1925(b) order, however, was only reflected at trial court docket number 5305-2019 (then Superior Court docket number 592 EDA 2022).
Rather than filing a Rule 1925(b) statement, Appellant, through counsel, filed a motion entitled "motion to reconsider sentence" at both trial court dockets on February 28, 2022. The trial court did not address Appellant's February 28, 2022 submission within 30 days of the February 18, 2022 judgment of sentence. Thereafter, Appellant's counsel filed an application for remand in this Court, citing the trial court's failure to dispose of Appellant's motion to reconsider his sentence. Appellant's application only requested this Court to remand Superior Court docket number 592 EDA 2022 (trial court docket number 5305-2019). For reasons that do not appear in the certified record, this Court quashed Appellant's appeal at 592 EDA 2022 on May 6, 2022. See Superior Court Order, 5/6/22, at 1.
No motion for remand and no quashal or remand order appears in the certified record for Superior Court docket number 591 EDA 2022 (the appeal taken from trial court docket number 5303-2019).
Thereafter, the trial court entered an order on May 24, 2022, denying Appellant's February 28, 2022 motion at both trial court dockets. On June 10, 2022, Appellant filed notices of appeal at both trial court dockets. Appellant's June appeal at trial court docket number 5305-2019 was lodged in this Court at 1560 EDA 2022, while Appellant's appeal at trial court docket number 5303-2019 was lodged in this Court at 1561 EDA 2022. The trial court ordered Appellant to file a 1925(b) statement at both trial court dockets on June 21, 2022. After securing an extension, Appellant filed his 1925(b) statement at both trial court dockets on August 26, 2022. On July 12, 2022, this Court dismissed Appellant's appeal at 1561 EDA 2022 as duplicative of the appeal at 591 EDA 2022.
Before we address the merits of Appellant's appeal, we consider whether, in both cases, Appellant filed timely notices of appeal and whether his claims are preserved for review.
We first address the appeal taken from trial court docket number 5303-2019, currently Superior Court docket number 591 EDA 2022. On
February 18, 2022, Appellant's judgment of sentence was issued and, on February 24, 2022, Appellant filed a timely notice of appeal, but then filed a motion for reconsideration four days later. In general, a notice of appeal divests the trial court of its authority to address a motion for reconsideration. See Pa.R.A.P. 1701(a). That being said, Rule 1701 restores the trial court's authority to address a reconsideration motion in circumstances where two conditions are met: the motion is filed within the time allowed to appeal the order in question and the trial court expressly grants reconsideration within the applicable appeal period. See Pa.R.A.P. 1701(b)(3)(i-ii) (explaining that a trial court may "[g]rant reconsideration of the order which is the subject of the appeal" if "an application of reconsideration of the order is filed" and "an order expressly granting reconsideration of such prior order is filed in the trial court . . . within the time prescribed by these rules"); PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007) (explaining that a trial court may only grant reconsideration of an order "within 30 days [of] its entry" otherwise "it loses the power to act upon the [motion] and the original order") (citations omitted).
A review of the certified record reveals that, once Appellant filed his notice of appeal at trial court docket 5303-2019 (Superior Court docket number 591 EDA 2022), this Court, alone, retained jurisdiction over the matter. Indeed, while Appellant filed a timely motion for reconsideration, the trial court never expressly granted reconsideration of its February 18, 2022 order. As such, the trial court did not regain jurisdiction over trial court docket 5303-2019 (Superior Court docket number 591 EDA 2022) under Pa.R.A.P. 1701(b)(3)(i-ii). Moreover, as explained above, Appellant did not include trial court docket number 5303-2019 (Superior Court docket number 591 EDA 2022) within his application for remand to permit trial court adjudication of his motion for reconsideration. Therefore, our May 6, 2022 quashal order extended only to Superior Court docket number 592 EDA 2022 (trial court docket number 5305-2019), not Superior Court docket number 591 EDA 2022 (trial court docket number 5303-2019). Hence, once Appellant filed his timely notice of appeal at trial court docket 5303-2019 (Superior Court docket number 591 EDA 2022), jurisdiction vested in this Court and was never thereafter restored to the trial court.
For this reason, the trial court's May 24, 2022 order denying Appellant's motion for reconsideration at 5303-2019 (Superior Court docket number 591 EDA 2022), issued May 24, 2022, was a legal nullity. See Pa.R.A.P. 1701(a) (providing that trial court may no longer proceed in any matter after an appeal has been taken).
Additionally, our examination of the certified record reveals that the issues raised in Appellant's appeal at Superior Court docket number 591 EDA 2022 (trial court docket 5303-2019) are preserved for appellate review. As stated above, after Appellant filed his notice of appeal at both trial court dockets, the trial court issued a Rule 1925(b) order, but did so only at trial court docket 5305-2019 (then Superior Court docket number 592 EDA 2022). No such order was issued at trial court docket 5303-2019 (Superior Court docket number 591 EDA 2022). Hence, the absence of a concise statement filed by Appellant at trial court docket number 5303-2019 poses no waiver problem for the issues Appellant seeks to raise on appeal at 591 EDA 2022. Moreover, the only issues raised by Appellant at 591 EDA 2022 pertain to the trial court's ruling on his suppression motion which, by its very filing, acted to preserve Appellant's claims on appeal. Commonwealth v. Burchard, 503 A.2d 936, 939 (Pa. Super. 1986) (en banc) (holding that the filing of a motion to suppress is sufficient to preserve such claims for appellate review). In view of the foregoing, we will address the merits of Appellant's claims at 591 EDA 2022.
The trial court issued a Rule 1925(b) order at trial court docket number 5303-2019 much later on June 21, 2022, after issuing an order denying Appellant's motion for reconsideration, and after Appellant filed a duplicative appeal on June 10, 2022. As stated above, the trial court's May 24, 2022 order denying Appellant's motion for reconsideration at 5303-2019 (Superior Court docket number 591 EDA 2022) constituted a legal nullity since Appellant's timely first appeal filed February 24, 2022 defeated the trial court's jurisdiction over the motion and that authority was never restored. Moreover, Appellant's second appeal entered at trial court docket 5303-2019, and lodged in this Court at 1561 EDA 2022, was later dismissed as duplicative of the appeal at 591 EDA 2022 on July 12, 2022. See Superior Court Order, 7/12/22, at 1. For each of these reasons, we shall disregard the trial court's Rule 1925(b) order issued on June 21, 2022 at 5303-2019.
We now turn to the appeal taken from trial court docket number 5305-2019, originally lodged in this Court at 592 EDA 2022 and currently designated as Superior Court docket number 1560 EDA 2022. As stated above, Appellant's judgment of sentence was issued on February 18, 2022. Appellant filed a timely notice of appeal on February 24, 2022, which was subsequently lodged at Superior Court docket number 592 EDA 2022. Thereafter, on February 25, 2022, the trial court issued an order at trial court docket number 5305-2019 (then Superior Court docket number 592 EDA 2022), directing Appellant to file a Rule 1925(b) concise statement within 21 days. Appellant, however, did not file a concise statement within the designated period.
Instead, on February 28, 2022, Appellant filed a motion for reconsideration in which he argued that the trial court "erred and abused its discretion" by "impos[ing] an unreasonable sentence." Appellant's Motion, 2/28/22, at *1-*2. The trial court did not immediately address Appellant's motion. As such, Appellant, on April 13, 2022, filed a motion for remand in this Court, listing only trial court docket number 5305-2019 (Superior Court docket number 592 EDA 2022) and asking that we remand the matter to the trial court "for consideration of Appellant's timely filed motion to reconsider his sentence." Appellant's Application for Remand, 4/12/22, at 1. On May 6, 2022, this Court quashed Appellant's appeal at trial court docket number 5305-2019 (then lodged at Superior Court docket number 592 EDA 2022) "as interlocutory, in light of the fact that the trial court ha[d] not decided Appellant's post-sentence motion." Superior Court Order, 5/6/22, at 1.
Following our order quashing the appeal at Superior Court docket number 592 EDA 2022 (trial court docket number 5305-2019), the trial court denied Appellant's motion for reconsideration on May 24, 2022. On June 10, 2022, Appellant filed a second notice of appeal at trial court docket number 5305-2019, which was subsequently lodged in this Court at 1560 EDA 2022. On June 21, 2022, the trial court directed Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b). After securing an extension, Appellant timely complied. The appeal filed at trial court docket number 5305-2019 poses several concerns that implicate both this Court's jurisdiction, as well as matters pertinent to issue preservation.
We first address Appellant's appeal from trial court docket number 5305-2019, originally lodged in this Court at 592 EDA 2022. As previously indicated, the trial court-imposed Appellant's judgment of sentence on February 18, 2022 and Appellant filed a notice of appeal on February 24, 2022. Because Appellant's appeal was filed within 30 days of the imposition of his sentence, it was timely filed. See Pa.R.Crim.P. 720(a)(3) ("If the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4)."); see also Pa.R.A.P. 903(a) ("Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.").
Thereafter, on February 25, 2022, the trial court ordered Appellant to file a concise statement at trial court docket number 5305-2019 (then Superior Court docket number 592 EDA 2022). Appellant, however, failed to file a timely 1925(b) statement, in contravention of the trial court's order. Accordingly, the claims Appellant sought to raise on appeal at 592 EDA 2022 (trial court docket number 5305-2019), became subject to waiver. See Pa.R.A.P.1925(b)(4)(vii) ("[i]ssues not included in the [Rule 1925(b)] Statement and/or not raised in accordance with the provisions of [Rule 1925(b)(4)] are waived"); Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 223 and 227 (Pa. Super. 2014) (en banc) (holding that an appellant waives all claims on appeal where the appellant "fail[s] to comply timely with the trial court's order directing it to file a concise statement of errors pursuant to [Rule 1925(b)]").
We now address the appeal from trial court docket number 5305-2019, currently lodged in this Court at 1560 EDA 2022. As stated above, on February 24, 2022, Appellant timely appealed his February 18, 2022 judgment of sentence at 5305-2019. Appellant's timely appeal, therefore, divested the trial court of jurisdiction, even over a timely, but subsequently filed, motion. See Pa.R.A.P. 1701(a). To render Appellant's appeal inoperative and restore jurisdiction in the trial court, two things needed to occur. First, Appellant needed to file a timely motion for reconsideration, which he did on February 28, 2022. Second, the trial court needed to expressly grant reconsideration within 30 days of the February 18, 2022 judgment of sentence, i.e., on or before March 21, 2022, which did not occur. See Pa.R.A.P. 1701(b)(3)(i-ii). The trial court, therefore, never regained jurisdiction over trial court docket number 5305-2019, including the authority to adjudicate Appellant's February 28, 2022 motion.
The general rule that the filing of a notice of appeal divests the trial court of jurisdiction applies regardless of whether we view Appellant's February 28, 2022 submission as a motion for reconsideration under 42 Pa.C.S.A. § 5505 or as a post-sentence motion under Pa.R.Crim.P. 720. See Commonwealth v. Marrero-Nardo, 2018 WL 6786659, *3 (Pa. Super. 2018) (unpublished memorandum). Either way, the two-step process outlined in Pa.R.A.P. 1701 had to occur to reestablish the trial court's authority to adjudicate Appellant's February 28, 2022 filing.
In apparent recognition of this fact, Appellant filed a motion for remand in this Court. Importantly, Appellant filed the remand motion on April 13, 2022, well after the expiration of the 30-day appeal period from the trial court's February 18, 2022 order. In response to Appellant's motion, this Court quashed Appellant's appeal at trial court docket number 5305-2019 (then Superior Court docket number 592 EDA 2022). In so doing, this Court treated the trial court's February 18, 2022 order as interlocutory because we erroneously believed that Appellant's notice of appeal was filed after Appellant's subsequent motion. See Superior Court Order, 5/6/22, at 1 (explaining that an appeal will be quashed as premature if it is filed prior to the disposition of a post-sentence motion). This Court's May 6, 2022 order did not direct the trial court to act upon Appellant's February 28, 2022 motion. On May 24, 2022, however, the trial court entered an order denying Appellant's motion.
Upon review, we conclude that the appeal at trial court docket number 5305-2019, currently lodged in this Court at 1560 EDA 2022, is untimely. Indeed, Appellant needed to file a notice of appeal no later than 30 days after the imposition of his sentence, or March 21, 2022, since the trial court did not expressly grant reconsideration of its February 18, 2022 sentencing order.The notice of appeal filed by Appellant on June 10, 2022, therefore, was filed well after the time for filing such an appeal passed. Moreover, we conclude that the trial court's May 24, 2022 order denying Appellant's February 28, 2022 motion was a legal nullity because, once Appellant appealed his judgment of sentence and the trial court failed to expressly grant reconsideration of Appellant's February 28, 2022 motion, the trial court never regained jurisdiction over trial court docket number 5305-2019. See Bell v. Kater, 839 A.2d 356, 358 (Pa. Super. 2003) (holding that the trial court's order granting the appellant leave to appeal nunc pro tunc was a legal nullity because it was entered "at a time when the trial court did not have jurisdiction, i.e., the order was entered after [the appellant] filed her first notice of appeal with this Court"). Based upon all the foregoing, we quash Appellants' appeal at trial court docket number 5305-2019, Superior Court docket number 1560 EDA 2019.
We consider only the timeliness of the notice of appeal that corresponds to the docket before us. At docket number 1560 EDA 2022, Appellant filed the notice of appeal on June 10, 2022. The February 24, 2022 notice of appeal that generated docket number 592 EDA 2022 is no longer before us, as that appeal has been quashed.
If Appellant sought to reinstate his post-sentence and direct appeal rights after his judgment of sentence became final and after we quashed his appeal at 592 EDA 2022, the proper course of action would have been to file a petition for collateral relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Appellant raises the following issues on appeal at 591 EDA 2022:
1. Did the trial court err as a matter of law when [it denied Appellant's] motion to suppress where the officers lacked reasonable suspicion and/or probable cause to stop, detain, search and seize [] Appellant [because] the officer[s] lacked any information that he was engaged in criminal activity, and he was merely in the vicinity of a reported crime?
2. Did the trial court err as a matter of law when denying [] Appellant's motion to suppress the identification of [Officer] Swinarski and his partner[, Officer] Lopez[,] where the identification was made under unduly suggestive circumstances [because] Appellant was in police custody, handcuffed, and in the back of a police patrol vehicle at the time of the identification?Appellant's Brief at 4.
On appeal, Appellant challenges the trial court's suppression ruling. Our standard of review for an order denying a motion to suppress is well established.
[We are] 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. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019), quoting Commonwealth v. Kemp, 195 A.3d 269, 275 (Pa. Super. 2018).
We initially consider Appellant's claims regarding the constitutionality of his initial detention. Appellant argues that, because Officer Bollarton did not "observe [Appellant] engage in any suspicious or criminal behavior," he lacked reasonable suspicion to support an investigative detention. Appellant's Brief at 15. Appellant's claim lacks merit.
This Court has recognized:
An investigative detention, unlike a mere encounter, constitutes a seizure of a person and thus activates the protections of [the Fourth Amendment of the United States Constitution and] Article 1, Section 8 of the Pennsylvania Constitution. To institute an investigative detention, an officer must have at
least a reasonable suspicion that criminal activity is afoot. Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion was appropriate.
***
Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of intrusion warrant a person of reasonable caution in the belief that the action taken was appropriate.
The question of whether reasonable suspicion existed at the time of an investigatory detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the individual stopped of criminal activity.
In making this determination, we must give due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.Commonwealth v. Luczki, 212 A.3d 530, 544-545 (Pa. Super. 2019) (internal citations, quotations, brackets, and ellipses omitted). Moreover, we have determined:
Among the factors to be considered in establishing a basis for reasonable suspicion are tips, the reliability of the informants, time, location, and suspicious activity, including flight. Reasonable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. When evaluating whether reasonable suspicion existed in a particular
case, this Court must view the circumstances through the eyes of a trained officer, not an ordinary citizen. Reasonable suspicion depends upon both the content of the information possessed by the police and its degree of reliability.Commonwealth v. Milburn, 191 A.3d 891, 898 (Pa. Super. 2018) (internal citations and quotations omitted).
The trial court, in addressing Appellant's claim that Officer Bollarton lacked reasonable suspicion to detain Appellant, stated as follows.
Here, Officer Bollarton's interaction with [Appellant] began as a mere encounter[.] When Officer Bollarton's patrol car approached [Appellant], Officer Bollarton could see blood on [Appellant's] face. Officer Bollarton and his partner did not activate their patrol car's lights or siren, and they did not draw their weapons from their holsters. Officer Bollarton initially simply shined a flashlight at [Appellant] and asked [Appellant] what happened. Although [Appellant] claimed that he had been in a fight, Officer Bollarton could plainly see shards of glass in the actively bleeding cut on [Appellant's] head and in [Appellant's] hair. Nothing in the record indicated that the officers were aggressive with [Appellant] or that [Appellant] was not free to leave. Officer Bollarton's observations of blood and glass, Officer Bollarton's initial question about what happened, and [Appellant's] initial implausible response that he had been in a fight were all part of a mere encounter that Officer Bollarton and his partner could lawfully initiate without possessing reasonable suspicion or probable cause.
Additionally, as Officer Bollarton and his partner encountered [Appellant], the officers were specifically searching for someone linked to the Buick crash [and encountered Appellant] a mere one blook away from the crash site. [At the time Officer Bollarton encountered Appellant, he] already knew from police radio (1) [Officers Swinarski and Lopez] had stopped a green Buick that matched a description from an earlier shooting; (2) the green Buick fled during the stop; and (3) the Buick was found unoccupied in the wooded area [one block away]. Given the totality of the circumstances-the context for Officer Bollarton's search of the area, [Appellant's] presence a block from the crashed Buick with visible injuries and glass fragments
on his head, and [Appellant's] response that failed to explain the presence of glass-Officer Bollarton possessed reasonable suspicion that [Appellant] was linked to the criminal activity that he was investigating. Thus, Officer Bollarton's investigative detention of [Appellant] was justified.
Trial Court Opinion, 1/13/23, at 10-11. Upon review, we agree with the trial court's assessment and adopt this aspect of its reasoning as our own. We therefore conclude that, in contrast to Appellant's claims, he was not subjected to an unconstitutional investigative detention and the trial court did not err in denying Appellant's motion to suppress on this basis.
We now turn to Appellant's claim that the trial court erred in failing to suppress Officer Swinarski's identification of him. Appellant claims that Officer Swinarski's out-of-court identification was unduly suggestive because Appellant "was in police custody, handcuffed and in the back of a police patrol vehicle at the time of the identification." Appellant's Brief at 16. We disagree.
We have previously stated:
A court must assess the reliability of an out-of-court identification by examining the totality of the circumstances. A pre-trial identification will not be suppressed as violative of due process unless the facts demonstrate that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The reliability of an out-of-court identification is determined by considering the totality of the circumstances, including, inter alia, the following specific factors: (1) the witness' ability to observe the criminal act; (2) the accuracy of [a] photo array selection and other descriptions; (3) the lapse of time between the act and any line-up; and (4) any failure to identify the defendant on prior occasions. The purpose of a suppression order regarding exclusion of identification evidence is to prevent improper police action. Thus, where a defendant does not show
that improper police conduct resulted in a suggestive identification, suppression is not warranted.
Additionally, even if an out-of-court identification is suggestive, an in-court identification is admissible if there exists an independent basis for the identification. An independent basis is established when the in-court identification resulted from the criminal act and not the suggestive identification procedure. To determine if an identification resulted from the criminal act and, therefore, has an independent basis, the trial court must consider the following factors:
The opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.Commonwealth v. Russell, 209 A.3d 419, 430-431 (Pa. Super. 2019) (internal citations, quotations, and brackets omitted), appeal denied, 218 A.3d 862 (Pa. 2019).
Herein, the evidence presented at the suppression hearing revealed that, during the initial traffic stop conducted by Officer Swinarski, he was able to observe Appellant. In particular, Officer Swinarski testified that, after initiating the traffic stop, he turned on the patrol vehicle's "takedown lights" which "illuminate[d] the inside of the vehicle so [he could] see into it." N.T. Suppression Hearing, 12/7/21, at 15. Officer Swinarski, thus, had a clear, lit view, inside the green Buick. Officer Swinarski further testified that, at that time, Appellant "twist[ed] his body to the right, turn[ed] his head back to turn" and look at the officers and, upon doing so, Officer Swinarski could see "the entire front" of Appellant's face. Id. at 16 and 25. Before Officer Swinarski could approach the green Buick, however, Appellant "took off." Id. at 18. While Officers Swinarski and Lopez pursued the vehicle, they lost sight of it for approximately two minutes, and located the vehicle after it crashed into a tree. Thereafter, Officer Bollarton observed Appellant one block away from the crash site, stopped him, and transported him back to the crash site in a police vehicle. Officer Swinarski then walked over to the police vehicle, observed Appellant in the back seat, and identified Appellant as the driver of the green Buick. Id. at 19-20.
The above evidence thus demonstrates that Officer Swinarski, a trained police officer, saw Appellant during the initial traffic stop, which occurred at approximately 7:08 p.m., and approximately 25 minutes later, Officer Bollarton transferred Appellant back to the crash site where Officer Swinarski identified him as the driver of the green Buick. Trial Court Opinion, 1/13/23, at 19, n.12. Thus, the evidence presented at the suppression hearing indicated that Officer Swinarski had ample opportunity to observe Appellant and made his identification within, at the very least, a half hour after conducting the traffic stop and an hour after the commission of the crime. Moreover, in contrast to Appellant's claims, the mere fact that Appellant was handcuffed and in a police vehicle does not mean the identification procedure was unduly suggestive, especially because "the identification was made by a trained police officer who witnessed the crime and had an adequate opportunity to observe [A]ppellant." Commonwealth v. Toro, 638 A.2d 991, 1001 (Pa. Super. 1994). Based upon the foregoing, we conclude that the trial court correctly denied Appellant's motion to suppress.
Judgment of sentence affirmed at Superior Court docket 591 EDA 2022. Appeal quashed at Superior Court docket 1560 EDA 2022. Jurisdiction relinquished.
[*] Retired Senior Judge assigned to the Superior Court.