Opinion
J-S10038-14 No. 1234 MDA 2013
03-31-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMAR S. HILL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on February 27, 2013
in the Court of Common Pleas of Lebanon County,
Criminal Division, No. CP-38-CR-000024-2012
BEFORE: GANTMAN, P.J., OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Jamar S. Hill ("Hill") appeals the judgment of sentence imposed following his convictions of one count of escape and two counts of possession of a controlled substance. We affirm.
18 Pa.C.SA. §5121(a), 18 Pa.C.SA. §5104, 35 P.S. §780-113(a)(16), 35 P.S. §780-113(a)(31)(i), 75 Pa.C.S.A. §4107(a)(1), respectively.
See 35 P.S. § 780-113(a)(16), (31)(i).
The Court notes that for purposes of grading the escape offense, the jury found the Defendant did not employ force or threat to effect the escape, and that he was not detained after his conviction for any offense for which he was incarcerated.
On October 22, 2011, Officer Joseph Fischer ("Officer Fischer") initiated a traffic stop of Hill based on window tint. Following the discovery of drugs in his car, Hill fled the scene as Officer Fischer attempted to arrest him. Hill was ultimately arrested and charged with the above-referenced crimes. Hill filed an Omnibus Pre-Trial Motion to Suppress Evidence, which the trial court denied. Following trial, a jury convicted Hill of the above-referenced crimes. On February 27, 2013, the trial court sentenced Hill to an aggregate sentence of time served to two years less one day in prison. Hill filed Post-Trial Motions, which were denied by the trial court. This timely appeal followed.
Because Hill had already served his minimum sentence, the trial court immediately released him on parole, under special conditions.
Pennsylvania Rules of Criminal Procedure provide that a defendant can file an optional post-sentence motion, which may include a motion for judgment of acquittal and a motion for a new trial. Pa.R.Crim.P. 720(B)(1)(a)(ii) and (iv).
On appeal, Hill raises the following issues for our review:
1. Whether [Hill] should be acquitted because there was insufficient evidence presented at trial to prove beyond a reasonable doubt that he committed the crimes of [e]scape and [possession]?Brief for Appellant at 5.
2. Whether [t]he [trial court] erred in denying [Hill's] Omnibus Pre-Trial Motion to Suppress [] Evidence based on an illegal traffic stop and subsequent search?
In his first claim, Hill contends that he was never officially detained and, thus, could not be convicted of escape. Id. at 11. Hill claims that, during the traffic stop, he was never informed that he would be placed under arrest or that there was a warrant for his arrest. Id. at 11-12. On this basis, Hill contends that there was insufficient evidence to convict him of escape. Id. at 12. Hill additionally claims that there was insufficient evidence to convict him of the possession charges because he testified that the drugs were not his and he did not know that they were in his car. Id. On this basis, Hill contends that there was insufficient evidence to convict him of the two counts of possession. Id.
Here, after setting forth the appropriate standard of review, the relevant crimes and the evidence of record, the trial court addressed Hill's challenges to the sufficiency of the evidence and concluded that they are without merit. See Trial Court Opinion, 6/19/13, at 12-23. We agree with the trial court and adopt its sound reasoning for the purpose of this appeal. See id.
In his second claim, Hill contends that the trial court erred by denying his Omnibus Pre-Trial Motion to Suppress Evidence because Officer Fischer did not have a reasonable suspicion to conduct a traffic stop, thereby rendering the stop unreasonable and the search illegal. Brief for Appellant at 13. Hill claims that Officer Fischer, who conducted the traffic stop, did not testify that he had ever measured the window tint on Hill's car to determine whether it had an impermissible light transmittance level of 70% or greater. Id. at 16. Because Officer Fischer did not testify that he knew the transmittance level of the window tint on Hill's car, Hill asserts, Officer Fischer did not have a reasonable suspicion to conduct a traffic stop on Hill's vehicle. Id. at 17. On this basis, Hill contends that the subsequent search of his vehicle was illegal and all items seized should be suppressed. Id.
After setting forth the relevant law and the evidence of record, the trial court addressed Hill's challenges to the denial of his Omnibus Pre-Trail Motion to Suppress Evidence and concluded that they are without merit. See Trial Court Opinion, 6/19/13, at 2-11. We agree with the trial court and adopt its sound reasoning for the purpose of this appeal. See id.
Judgment of sentence affirmed. Judgment Entered. __________________________
Joseph D. Seletyn, Esq.
Prothonotary
IN THE COURT OF COMMON PLEAS OF LEBANON COURT
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v.
JAMAR HILL
No: CP-38-CR-24-2012
APPEARANCES:
Megan Ryland-Tanner, Esq. for the Commonwealth
Kimberly Adams, Esq. for the Defendant
OPINION, KLINE, J.,
Before the Court are the Defendant's Post-Sentence Motions. For the reasons set forth herein, we deny the Post-Sentence Motions, as specified below.
FACTS AND PROCEDURAL HISTORY
The Defendant was charged with Escape, Resisting Arrest, two counts of Violation of the Controlled Substance, Drug, Device, and Cosmetic Act, and two summary offenses of Unlawful Activities.1 On June 20, 2012, the Defendant filed an Omnibus Pre-Trial Motion to Suppress Evidence and Dismiss Charges. The Pre-Trial Motion was ultimately denied after a hearing was held on August 8, 2012.
A jury trial was held on the charges on January 9, 2013. At the conclusion of the trial, the jury found the Defendant guilty of Count I, Escape, and Count III, Violation of the Controlled Substance, Drug, Device, and Cosmetic Act.2 Further, the jury found the Defendant not guilty of Count II, Resisting Arrest. Also, this Court found the Defendant guilty of Count IV, Violation of the Controlled Substance, Drug, Device, and Cosmetic Act, and both summary offenses. The Defendant was sentenced on February 27, 2013.
On or about February 28, 2013, the Defendant filed his timely Post-Sentence Motions, which included a Motion for Judgment of Acquittal and a Motion for a New Trial.3 First, the Defendant argues that he is entitled to an acquittal because there was insufficient evidence to find him guilty of Counts I, III, and IV. Second, the Defendant argues that he is entitled to a new trial because the Court erred in denying his Omnibus Pre-Trial Motion to Suppress Evidence and Dismiss the Charges. The Defendant filed a brief in support of his position on May 13, 2013. The Commonwealth filed a brief in support of its position on June 5, 2013. The case is thus before us and ripe for disposition.
DISCUSSION
Pre-Trial Ruling
The Court will examine the pre-trial ruling first. In the Pre-Trial Motion, the Defendant claimed he was subjected to an illegal traffic stop and subsequent search in violation of the United States and Pennsylvania Constitutions. Therefore, all evidence seized from his vehicle should have been suppressed.
Pennsylvania Rule of Criminal Procedure 581(A) allows a defendant to file a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant's rights. The law is well settled that the Commonwealth has the burden at a suppression hearing of establishing "by a preponderance of the evidence that the evidence was properly obtained." Com. v. Jackson, 62 A.3d 433, 438 (Pa. Super. 2013). At the suppression hearing, the Commonwealth has the primary burden of both production under 581(H) and persuasion (as the official comment instructs) to convince the court that the evidence was legally obtained. Com. v. Enimpah, 62 A.3d 1028, 1031 (Pa. Super. 2013).
The record of the pre-trial hearing reflects the following relevant facts. Officer Joseph Fischer (hereinafter "Fischer") of the North Cornwall Township Police Department testified at the pre-trial hearing on behalf of the Commonwealth. On October 22, 2011, Fischer effectuated a traffic stop of the Defendant. (N.T. 5). It was dark outside at the time of the stop. (N.T. 6). Approximately twenty minutes prior to the traffic stop, Fischer observed a 1992 maroon station wagon travelling westbound around the 800 block of East Penn Avenue in North Cornwall Township. (N.T. 6-7). Approximately 20 minutes later, he observed it travelling eastbound. (N.T. 6-7). Fischer observed that the side windows and the driver's side passenger side windows were tinted. (N.T. 7). He was not sure if the back window was tinted. (N.T. 7). Fischer identified the Defendant as the individual who was driving the vehicle. (N.T. 8).
There were street lights in the area where the Defendant was pulled over. (N.T. 10). Fischer was able to view the vehicle in both lanes. (N.T. 10). Based on what Fischer viewed, he believed that the car had an illegal type of window tint. (N.T. 10). Fischer testified that he has pulled over approximately 1,000 vehicles for window tinting within the past 10 years. (N.T. 9-10).
After observing the tint, Fischer subsequently pulled out and followed the vehicle at a distance. (N.T. 11). The vehicle turned onto Willow Street, and Fischer activated his overhead lights. (N.T. 11). When Fischer approached the vehicle, Fischer could see the window was tinted and that there was mylar on the window. (N.T. 23). Fischer could not clearly see inside the vehicle. (N.T. 23).
Fischer testified that mylar is a substance that can be added to windows, and "any time you add mylar to a window you will make it illegal, provided it is a window that has to have 70% light the transmittance." (N.T. 19).
Officer Minnich (hereinafter "Minnich") arrived on the scene to conduct a K-9 search, and Fischer escorted the Defendant out of the vehicle. (N.T. 25). Fischer began to question the Defendant about drug use. (N.T. 26). Ultimately, Fischer advised the Defendant that he would receive a citation in the mail for the windows. (N.T. 12). Fischer testified that he talked to the Defendant about his drug use, and Minnich arrived on the scene prior to him informing the Defendant that he was going to receive the citation in the mail. (N.T. 27). Minnich walked the dog around the vehicle, but the dog did not indicate any drugs were in the vehicle. (N.T. 28). The dog was walked around the vehicle prior to Fischer indicating that he would receive a citation in the mail. (N.T. 30).
Fischer had concluded his traffic stop in relation to the window tint. (N.T. 35) The Defendant then reengaged Fischer and asked if he could not be cited if he removed the tint. (N.T. 12, 35).
During the traffic stop, Fischer was suspicious of the story as to why the Defendant was out that night. (N.T. 28). Originally, the Defendant told Fischer he was coming from work, a place called Pallet Jack. (N.T. 13). Fischer questioned the validity of this story, since he saw the vehicle travelling 20 minutes prior to the stop. (N.T. 13). Fischer tried to gather information on his employment to try to verify the story. (N.T. 24). After further questioning, the Defendant changed his story, and stated that he was actually visiting his homosexual partner, and the Defendant was originally too embarrassed to tell Fischer. (N.T. 14). Even after this story, Fischer still did not believe the Defendant, and he thought he was creating a ruse to throw him off. (N.T. 29). Fischer stated that the Defendant seemed nervous and fidgety. (N.T. 29). There was also a conversation about whether the Defendant was at Wal-Mart. (N.T. 34).
After Fischer indicated to the Defendant that he would be receiving a citation in the mail, Brooke Darkes (hereinafter "Darkes") arrived at the scene. (N.T. 13, 35). Darkes was the on-call probation officer at the time of the traffic stop. (N.T. 13). Fischer asked the Defendant if he had anything in his car, and he stated "no." (N.T. 28).
The Court notes that the transcript of the pre-trial hearing indicates that when Fischer initiated the traffic stop, he noted that there was a strong odor of marijuana in the vehicle. (N.T. 28-29). However, the transcript also suggests that there was not an odor of marijuana in the vehicle. (N.T. 30). Therefore, the Court has disregarded this fact since it is ambiguous as to whether there was an odor of marijuana in the vehicle.
The Defendant was on probation at the time of the incident. (N.T. 15). Darkes searched the vehicle. (N.T. 15-16). The Defendant consented to the search. (N.T. 15). When Darkes went up to the vehicle, it was locked and the keys were on the inside. (N.T. 15). The vehicle was subsequently unlocked with a piece of wire. (N.T. 15). The search revealed bags in the vehicle. (N.T. 16). One bag contained a substance suspected to be marijuana, and another bag contained a white powder suspected of being cocaine. (N.T. 16). The Defendant did not have any testimony to rebut the testimony on the traffic stop. (N.T. 36).
Fischer had previously stopped this vehicle with regard to the window tint in February of 2011. (N.T. 8-9, 22). Back during this time, Fischer had a discussion with the Defendant as to why his window tint was illegal. (N.T. 9). During this encounter, Fischer used a tint meter on the windows to test the window tint. (N.T. 19). Fischer did not use the tint meter during the stop in October of 2011. (N.T. 22). Fischer testified that he did not use the tint meter because he did not think it was necessary because he did not notice any changes in the tinting from when Fischer previously had contact with the Defendant, and he believed the tint was illegal based on his experience. (N.T. 33).
Darkes also provided testimony at the pre-trial hearing on behalf of the Commonwealth which corroborated Fischer's testimony on the search of the vehicle . Darkes is employed as an adult probation officer. (N.T. 43). On the night of October, 22, 2011, Darkes was on on-call status, and she received a call in relation to the Defendant from Fischer. (N.T. 43). Fischer was initially questioning Darkes about where the Defendant worked and what hours he worked. (N.T. 43). On October 22, 2011, the Defendant was under the supervision of Lebanon County Adult Probation. (N.T. 44). Fischer did not ask Darkes to come to the scene, but she was on her way home from the Campbelltown/Palmyra area, and she was travelling past the area so she decided to stop to see if she could offer any assistance. (N.T. 44). Darkes never had previous interactions with the Defendant, but she was reading some notes on her laptop from the Defendant's probation officer concerning the Defendant's possible drug use. (N.T. 54). Darkes testified that the Defendant had a curfew, and it was clear that the Defendant was out past his curfew. (N.T. 46).
When Darkes arrived on the scene, she subsequently asked the Defendant if she could search the vehicle. (N.T. 47). The Defendant consented to Darkes' search of the vehicle. (N.T. 47). During the search of the vehicle, Darkes found the drugs. (N.T. 48). After the Defendant told his story about coming home from work, Darkes told him that lying to an officer and/or adult probation is a violation of his probation; then, the Defendant indicated that he was with the other individual. (N.T. 49).
Basis for the Traffic Stop
The relevant statutory authority provides as follows:
(b) Authority of police officer.--Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.75 Pa.C.S.A. § 6308(b). It is well settled that an officer may stop a motor vehicle if the officer reasonably believes that a provision of the Motor Vehicle Code is being violated. Com. v. Henley, 909 A.2d 352, 358 (Pa. Super. 2006).
Our Supreme Court defines reasonable suspicion as: a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances. In order to justify the seizure, a police officer must be able to point to "specific and articulable facts" leading him to suspect criminal activity is afoot. In assessing the totality of the circumstances, courts must also afford due weight to the specific, reasonable inferences drawn from the facts in light of the officer's experience and acknowledge that innocent facts, when considered collectively, may permit theCom. v. Farnan, 55 A.3d 113, 116 (Pa. Super. 2012).
investigative detention. Thus, under the present version of Section 6308(b), in order to establish reasonable suspicion, an officer must be able to point to specific and articulable facts which led him to reasonably suspect a violation of the Motor Vehicle Code[.] [W]hether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances.
The Defendant first contends that the traffic stop was illegal. The Defendant argues in his brief that Fischer did not have reasonable suspicion to believe that criminal activity was afoot to justify conducting the traffic stop. We do not agree.
Fischer had contact with the Defendant and the same vehicle in February of 2011. During this time, Fischer tested the windows with a tint meter, and they were found to be illegal. Around this time period, Fischer had a discussion with the Defendant about why his window tint was illegal. Then in October of 2011, Fischer saw the vehicle again twice, once travelling westbound and another time travelling eastbound. Fischer recognized the vehicle, and he saw the window tint. Upon seeing the window tint, Fischer did not believe that the windows had changed since his prior contact. There was absolutely no testimony to rebut this. There was no testimony that there was a different window tint in October of 2011. In Fischer's experience, he has pulled over approximately 1,000 vehicles for window tint violations. Therefore, Fischer had reasonable suspicion that a violation of the Motor Vehicle Code was occurring on the night he pulled over the Defendant's vehicle based on the tinted windows. Accordingly, the traffic stop was valid.
The Defendant was charged with violating 75 Pa.C.S.A § 4107)(a)(1), which provides as follows:
(a) Violation of vehicle equipment standards.—75 Pa.C.S.A § 4107(a)(1).
(1) It is unlawful for any person to sell, offer for sale, lease, install or replace, either separately or as part of the equipment of a vehicle, any item of vehicle equipment affecting the operation of the vehicle which does not comply with this title or regulations promulgated thereunder, or which does not comply with an applicable Federal motor vehicle safety standard adopted by regulation by the department.
The Defendant argues in his brief that on the date in question, it was night time, and there was not sufficient lighting in the area in which the Defendant's vehicle was pulled over. Fischer testified that there were street lights in the area where the Defendant was pulled over, and he was able to see the windows. Accordingly, this argument fails.
Also, the Defendant contends in his brief that Fischer testified that he did not use a tint meter to measure the percentage of light transmitted through Defendant's windows. As already stated, Fischer stated that he did not think it was necessary because he did not notice any changes in the tinting from when Fischer previously had contact with the Defendant. Furthermore, there was absolutely no testimony to suggest that there was a change in the window tint. Accordingly, the Defendant is not entitled to relief on this claim.
Search of the Vehicle
The Defendant also contends since Fischer did not have reasonable suspicion to stop his vehicle, the subsequent search was illegal, and all items seized should be suppressed. Our Superior Court has provided our standard of review as follows:
A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible,Com. v. Kemp, 961 A.2d 1247, 1260-1261 (Pa. Super. 2008).
unless an established exception applies. One such exception is consent, voluntarily given. The central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen/police encounter giving rise to the consent; and, ultimately, the voluntariness of consent. Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus.
In connection with [the inquiry into the voluntariness of a consent given pursuant to a lawful encounter], the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice—not the result of duress or coercion, express or implied, or a will overborne—under the totality of the circumstances.... [W]hile knowledge of the right to refuse to consent to the search is a factor to be taken into account, the Commonwealth is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.... Additionally, although the inquiry is an objective one, the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will), are to be taken into account....
Since both the tests for voluntariness and for a seizure centrally entail an examination of the objective circumstances surrounding the police/citizen encounter to determine whether there was a show of authority that would impact upon a reasonable citizen-subject's perspective, there is a substantial, necessary overlap in the analyses.
As noted, the Strickler Court promulgated a non-exclusive list of factors to be employed in determining whether a seizure occurred for purposes of the Constitution. We conclude that the following factors outlined therein are pertinent to a determination of whether consent to search
is voluntarily given: 1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search.
757 A.2d 884 (Pa. 2000) (footnote added).
Having already found the underlying traffic stop to be lawful, voluntariness of the consent is the exclusive focus. The record of the pre-trial hearing indicates that when Fischer was finished with the traffic stop, the Defendant reengaged Fischer in conversation by trying to bargain a deal with him. The Defendant could have left; however, he asked if he could not be cited if he subsequently changed the tint. Thereafter, Darkes arrived on the scene as it was clear to her that the Defendant was out past his curfew, and he was on probation at the time. Darkes reviewed the Defendant's file on her lap top, and she read notes on him from his probation officer concerning possible drug use. Darkes asked the Defendant to search his vehicle. The Defendant consented to this search. The search resulted in Darkes finding drugs in the vehicle. There was absolutely no testimony during the pre-trial hearing that suggests that the consent was not voluntary. Accordingly, the Court finds that that Defendant voluntarily consented to the search. A search warrant was not needed, and it was not an illegal search. The Defendant is not entitled to relief on this claim, and his Post-Sentence Motion for a New Trial is denied.
Sufficiency of the Evidence
Next, The Defendant argues that he is entitled to an acquittal because there was insufficient evidence to sustain his verdict of guilty on Counts I, III, and IV. Our Superior Court has stated our standard of review as follows:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Com. v. Jones, 874 A.2d 108, 120-121 (Pa. Super. 2005). The record of the jury trial reflects the following facts relevant to disposition of the sufficiency of the evidence claims.
Fischer again testified on behalf of the Commonwealth at the jury trial. On October 22, 2011, Fisher made contact with a vehicle that had dark window tints. (N.T. 5). At approximately 11:40 at night, Fischer noticed a vehicle travelling westbound on Route 422. (N.T. 6). Approximately 20 minutes later, Fischer noticed the vehicle travelling again eastbound. (N.T. 6- 7). The vehicle was a maroon station wagon with window tints on the front windows. (N.T. 7, 26). Fischer ultimately pulled the vehicle over. (N.T. 9). Fischer approached the vehicle and made contact with the driver. (N.T. 10). Fischer identified the Defendant as the driver of the vehicle. (N.T. 10). Nobody else was inside the vehicle. (N.T. 10). The Defendant appeared to be nervous. (N.T. 14).
Originally, the Defendant told Fischer he was coming from work. (N.T. 11). Fischer did not believe him since he previously saw the vehicle travelling westbound. (N.T. 11). Then, the Defendant said he was going to Wal-Mart. (N.T. 11). The Defendant eventually changed his story again and told Fischer that he was out because he was seeing his homosexual lover, but he was originally too embarrassed to tell him. (N.T. 14).
Fischer went back to his car to run the Defendant's information, and he discovered that the Defendant was on probation. (N.T. 12). Fischer contacted the on-call probation officer, Darkes (N.T. 12-13). Fischer asked her about the Defendant's work schedule, and her response did not match what the Defendant told Fischer. (N.T. 13).
Fischer asked for another officer to assist him as back up, and Minnich eventually arrived. (N.T. 14-15). Fischer asked the Defendant if there was anything in the vehicle, and the Defendant told Fischer that there was not, and he could even search the vehicle. (N.T. 15). Fischer did not search the vehicle at the time, but Minnich walked a dog around the vehicle to see if it indicated anything. (N.T. 15). The dog did not make a hit for drugs. (N.T. 15).
Fischer advised the Defendant that he would be citing him for the windows in his vehicle (for unlawful activity pertaining to the window tint), and the citation would come in the mail. (N.T. 16-17). Thereafter, Minnich left the area. (N.T. 16). When Fischer told the Defendant that he would send the citation in the mail, both parties started to walk back to their vehicles. (N.T. 17). Then, the Defendant asked Fischer if he could not be cited if he removed the window tint. (N.T. 17).
Darkes arrived at the scene. (N.T. 17). Darkes searched the vehicle. (N.T. 18). Darkes found little bags of what appeared to be marijuana and cocaine in a vent panel in a rear door of the vehicle. (N.T. 18-19). Based on his experience and training, Fischer believed the drugs were marijuana and cocaine. (N.T. 19). At that point, Fischer began to tell the Defendant that he was under arrest, and he reached for his arm. (N.T. 19). Fischer testified that he was able to get the words out to the Defendant and that he was under arrest. (N.T. 20). Fischer testified, "as he was pulling his arm away I got the words out, and my hand barely hit his arm and he took off. He began to run." (N.T. 20). Fischer testified that his hand touched his arm, but he did not actually physically grab it. (N.T. 35).
The Defendant was sprinting. (N.T. 23). Fischer ran after him. (N.T. 20). Fischer repeatedly yelled at him to stop. (N.T. 21). Fischer drew his taser, and told him to stop or he would fire the taser. (N.T. 21). The Defendant did not stop, and he fired the taser. (N.T. 21). The taser did not hit, and the Defendant continued to run. (N.T. 21). The taser made a popping sound when it went off, and there was a loud crackling sound for about five seconds. (N.T. 44). There was no fight/struggle between Fischer and the Defendant; rather, there was just running. (N.T. 35). Eventually, Fischer stopped his pursuit of the Defendant. (N.T. 24). Fischer went back to the vehicle, and Darkes gave him the items she found. (N.T. 24).
Darkes also testified at the jury trial. Darkes was the on-call probation officer on October 22, 2011. (N.T. 50). She was contacted by Fischer regarding the Defendant. (N.T. 50). Darkes happened to be driving past the traffic stop, and when she saw Fischer's lights, she decided to stop at the scene. (N.T. 52). Darkes exited her vehicle, and went over to the Defendant to have a conversation with him about whether he was violating the rules of his probation. (N.T. 53, 55). Darkes identified the Defendant at trial. (N.T. 55) .
Although the vehicle was initially locked because the keys were inside, it was ultimately unlocked, and Darkes asked the Defendant if she could look inside his vehicle. (N.T. 56). The Defendant consented to the search. (N.T. 56) . Darkes discovered some bags inside a door panel. (N.T. 57). Based on her training and experience, she believed the substances in the bags were marijuana and cocaine. (N.T. 58). Darkes testified at the point when she pulled the bags out, the Defendant's eyes became very wide, and the Defendant fled the scene on foot when Fischer attempted to reach for the Defendant. (N.T. 59). Fischer verbally told him to stop several times. (N.T. 60). Darkes did not remember if Fischer had told him he was under arrest. (N.T. 60). Fischer ran after the Defendant, and was requesting the Defendant to stop. (N.T. 61). Darkes never formally placed the Defendant under arrest after she found the drugs. (N.T. 65).
The parties stipulated certain facts, which stipulation was admitted into evidence as Exhibit 1. The stipulation included the fact that the substances that were found in the vehicle were determined to be cocaine and marijuana. (N.T. 69, Exhibit No. 1).
Minnich testified on behalf of the Defendant. Minnich is part of the K-9 Unit. (N.T. 71). He testified he performed an exterior scan of the vehicle with his dog, and the dog did not indicate the presence of any drugs in the vehicle. (N.T. 75-76).
The Defendant testified at trial. He acknowledged to running away when the drugs were found. (N.T. 89). The Defendant testified, "She opened the door, and then I seen her like squat down and something dropped on the ground, and that is when I stepped closer to see what it was, and once I knew what it was I just took off." (N.T. 89). He testified that he knew it was something illegal. (N.T. 89, 101). The Defendant claimed that he never saw Darkes holding anything; rather, he just saw it on the ground. (N.T. 90). The Defendant testified that he did not have drugs in his car, and that the marijuana and cocaine that was found was never in his vehicle. (N.T. 91, 101). He testified that the drugs only appeared when Darkes showed up. (NT. 91-92). The Defendant stated that the last time he used a controlled substance was in 1996. (N.T. 101). He asserted that he did not hear Fischer tell him that he was under arrest, that Fischer did not put his hands on him, and Fischer did not bring out handcuffs. (N.T. 90). While running, the Defendant heard Fischer yell stop. (N.T. 90). The Defendant said that Fischer also yelled "Stop or I will shoot you." (N.T. 90). The Defendant stated that he did not stop because he believed that Fischer was reaching for his service weapon, and not the taser. (N.T. 91).
Escape
The Defendant specifically argues that he was never under official detention; therefore, he could not be convicted of escape. Further, during the traffic stop, the Defendant was never informed that he would be placed under arrest or that there was an arrest warrant for him.
The relevant statute is set forth as follows:
(a) Escape.--A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.18 Pa.C.SA. §5121(a). The focus of our inquiry is whether the Defendant unlawfully removed himself from "official detention." The statute defines "official detention" as follows:
As used in this section the phrase "official detention" means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.18 Pa.C.SA. §5121(e).
The Defendant was not detained in any facility nor was he in detention for extradition or deportation. An arrest is accomplished by any act which indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest. Com. v. Allessie, 406 A.2d 1068 (Pa. Super. 1979). All that is required for an arrest is some act by an officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer. Com. v. Brown, 326 A.2d 906 (Pa. Super. 1974). The record is clear that Fischer intended to take the person into custody upon the discovery of the drugs; however, Fischer was never able to obtain actual control over the Defendant because he ran away. Therefore, this Court cannot conclude that the facts of this case fall under the "arrest" definition of "official detention."
Therefore, the focus of our inquiry now turns upon whether the Defendant was under "any other detention for law enforcement purposes." The Court has examined the relevant case law and has determined that the facts of this case support the finding that the Defendant was under "any other detention for law enforcement purposes."
In Com. v. Santana, 959 A.2d 450 (Pa. Super. 2008), the Superior Court stated, "Previously, we have interpreted ["any other detention for law enforcement purposes"] to mean a seizure in which the police have restrained the liberty of a person by show of authority or physical force. Any determination as to whether a seizure occurred is based upon the totality of circumstances and whether a reasonable person would have believed he or she was free to leave." Santana, 959 A.2d at 452.
Based on the totality of the circumstances, the jury could conclude that a reasonable person would have believed that he or she was not free to leave based on the Defendant's circumstances. Fischer testified that upon the discovery of the drugs, he told the Defendant that he was under arrest, and he reached for his arm. Fischer testified that he was able to get the words out to the Defendant that he was under arrest. As already stated, Fischer testified, "as he was pulling his arm away I got the words out, and my hand barely hit his arm and he took off. He began to run." The Defendant sprinted away, and Fischer chased after him and repeatedly yelled at him to stop. Fisher fired his taser, but the taser did not hit the Defendant. The Defendant acknowledged in his testimony that he ran away when the drugs were found, and he heard Fischer yell at him to stop, but he did not stop because he thought Fischer was reaching for his service weapon. These facts indicate that Fischer attempted to restrain the liberty of the Defendant by a show of authority; thereby, constituting a seizure and falling under the definition of "any other detention for law enforcement purposes."
The Court notes that the Defendant even testified that he believed that he was not free to leave when Darkes arrived. (N.T. 98-99).
The Commonwealth cites Com. v. Colon, 719 A.2d 1099 (Pa. Super. 1998), to argue that the Defendant was under official detention. In Colon, the Superior Court determined whether there was sufficient evidence in that case to determine that the defendant was under "official detention" as required by the escape statute. The Superior Court held that official detention exists when an individual is informed by a uniformed officer that the officer has a warrant for the individual's arrest and that the individual is under arrest. The Court finds this case to be distinguishable from the instant case as the Defendant did not have a warrant out for his arrest.
In Com. v. Petrilla, 39 Pa. D. & C.3d 583 (Pa. Com. PL 1985), the Court of Common Pleas of Somerset County ruled that the defendant in that case could be found guilty of escape since his conduct in running away from a police officer who was attempting to issue him a citation for disorderly conduct was an escape from official detention. In Com. v. Reinhart, 3 Pa. D. & C.4th 134 (Pa. Com. PL 1989), the Court of Common Pleas of Bucks County ruled that where an officer never actually seizes or obtains any control over the defendant's person, the defendant will not be found to have been in official detention. The act of an officer in calling out to a fleeing defendant "Stop, you are under arrest!" amounted merely to an attempt to detain the defendant, and the defendant's actions did not constitute escape. In Reinhart, the Commonwealth cited Petrilla, but the Court stated that it did not know the underlying facts of that case; therefore, it did not analyze or rely on the case.
The cases are somewhat dated and not controlling; however, we still find guidance from the Courts' analyses. This Court will not follow the ruling in Reinhart because the facts of that case are different. After a traffic stop, the defendant exited from the front passenger door of the vehicle, and ran into adjoining fields. The officer yelled at the defendant from approximately 25 feet away, "Stop, you are under arrest." The Defendant ignored the order to stop and kept running. In the instant case, Fischer did not yell to the Defendant that he was under arrest from 25 feet away. Rather, Fischer said that he was able to get the words out and actually touched the Defendant's arm.
Although still somewhat different, the facts of Petrilla are more similar to the instant case. The Court is aware that Fischer was not attempting to issue the Defendant a citation when the Defendant fled, as is what happened in Petrilla. Rather, Fischer told the Defendant he was going to mail him the citation. Both parties walked away and started to return to their vehicles. The Defendant could have left at this time; however, he chose to return to Fischer and reengaged him in conversation to try to bargain a deal with him. It was during this time that Darkes arrived, and the search of his vehicle followed, which led to the discovery of the drugs. At that point, the Defendant ran away. The Court notes that the Defendant testified that he did not know what the substances were on the ground, but he "knew" they were illegal. (N.T. 89, 101). The Court emphasizes that the Defendant did not testify that he thought they were illegal, he explicitly stated that he "knew" they were illegal. The Court does not believe that a reasonable person in that circumstance, "knowing" that something was illegal, would run away. A reasonable person would probably remain to attempt to clarify the situation.
For all the aforementioned reasons, this Court finds that the facts of this case support a jury finding that the Defendant was under "any other detention for law enforcement purposes," thereby falling under the definition of "official detention" in the escape statute. Accordingly, there was sufficient evidence for the jury to find him guilty of escape, and the Defendant is not entitled to relief on this claim.
Violations of the Controlled Substance Drug Device and Cosmetic Act
Next, the Defendant avers that there was insufficient evidence to find him guilty of the drug charges because he testified at trial that he had no knowledge that the drugs were there, and the drugs did not belong to him.
The finder of fact makes credibility determinations. Com. v. Gibbs, 981 A.2d 274 (Pa. Super. 2009). Further, the finder of fact is free to believe all, part, or none of the evidence. Com. v. Murray, 597 A.2d 111 (Pa. Super. 1991). Based on these well-settled principles of law, the fact fmder made the credibility determinations of the witnesses, and it was permitted to believe all, part, or none of the testimony and evidence. This Court cannot disturb the credibility determinations.
The Court notes that the jury found the Defendant guilty of Count III while the Court found him guilty of Count IV.
Nonetheless, this Court finds that there was sufficient evidence to sustain his drug convictions. The Controlled Substance, Drug, Device and Cosmetic Act provides as follows, in relevant part:
§ 780-113. Prohibited acts; penalties35 P.S. §780-113(a)(16), (31)(i).
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
...
(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
...
(31) Notwithstanding other subsections of this section,
(i) the possession of a small amount of marihuana only for personal use...
"To sustain a conviction for the crime of possession of a controlled substance, the Commonwealth must prove that Appellant knowingly or intentionally possessed a controlled substance without being properly registered to do so under the Act. See 35 P.S. § 780-113(a)(16)." Com. v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012). Furthermore,
Possession can be proven by showing actual possession, i.e., a controlled substance found on the appellee's person, or by showing that the appellee constructively possessed the drug. [When the drug is not found on his person], the Commonwealth had the burden of proving that he had constructive possession of the drug. Constructive possession has been defined as the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control.Com. v. Macolino, 469 A.2d 132, 134 (Pa. 1983).
An intent to maintain a conscious dominion may be inferred from the totality of the circumstances. Further, circumstantial evidence may be used to establish a defendant's possession of drugs or contraband.
It is evident that the drugs were not found on the Defendant's person. However, there was enough circumstantial evidence to prove that the Defendant constructively possessed the drugs. As already stated, the record indicated that when Darkes searched the Defendant's vehicle, several bags were found in his vehicle. The substances in the bags were later discovered to be marijuana and cocaine. When the drugs were discovered, the Defendant sprinted away. There was absolutely no evidence suggesting that the Defendant was properly registered to possess the substances. Therefore, the Court finds this to be sufficient evidence to sustain both of his drug convictions pursuant to 35 P.S. §780-113(a)(16) and (31)(i). Accordingly, the Defendant's Motion for Judgment of Acquittal is denied. We will enter an Order consistent with the foregoing.