Opinion
1261 EDA 2023
07-22-2024
COMMONWEALTH OF PENNSYLVANIA v. DEVON MALCOM WILLIAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered December 19, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0002148-2021
BEFORE: BOWES, J., STABILE, J., and LANE, J.
MEMORANDUM
STABILE, J.
Appellant, Devon Malcom Williams, appeals from the December 19, 2022 judgment of sentence imposing an aggregate thirteen to twenty-six years of imprisonment for multiple convictions of robbery, burglary, conspiracy and related offenses. Appellant raises issues relating to the trial court's denial of his motion to suppress and the discretionary aspects of his sentence. Upon review, we affirm in part and vacate in part.
At the conclusion of the suppression hearing, the trial court made the following findings of facts relative to this appeal:
We limit our scope of review to the record created during the suppression hearing, since when reviewing a motion to suppress evidence, we may not look beyond the suppression record. In re L.J., 79 A.3d 1073, 1080 (Pa. 2013).
On January 16, 2021, Pottstown Police issued a be-on-the-lookout ["BOLO"] bulletin for Annette Bowen following a home invasion at Charlotte Street in Pottstown.
Authorities were able to obtain surveillance video from the residence [at the time of the incident] which showed one of the actors was an African American [male] who was wearing whitewashed jeans with black knee patches, [and] a black Nike-hooded sweatshirt with a digital camera design on the sleeves.
Upon receipt of the [BOLO] alert, the Lansford Police began making extra patrols of the area near Defendant Bowen's residence.
On January 18, 2021, at approximately 2:00 p.m., [Chief] Jack Soberick saw a gray vehicle pull into a parking spot in front of Defendant Bowen's residence.
Defendant Bowen, an African American male, and a Caucasian male all exited the vehicle and entered the residence.
Defendant Bowen later exited the residence with these two individuals, and all three got into the vehicle and began to drive away.
[Chief] Soberick conducted a stop of the vehicle.
When stopping the vehicle, he obtained information from a confidential informant that was known to police and deemed credible that [Appellant] had been [in] possession of firearms and silver bars while inside the residence.
[Chief] Soberick was in constant contact with Pottstown authorities, supplied this information to them, in addition to the description of the defendant.
Based upon the fact that this information matched the description of one of the individuals involved with the home invasion, Pottstown Police directed [Chief] Soberick to detain [Appellant].
[Appellant] was subsequently transported to the [Lansford] police station.
While in the station, authorities did not ask [Appellant] about the incident.
During this interaction, [Appellant] asked why he was being detained.
Chief Soberick of the Lansford Police responded that [Appellant] fit the general description of a person who had been involved in an incident in Pottstown.
When [Appellant] asked, what general description meant, Chief Soberick responded that the person had bad teeth and he informed [Appellant] that his teeth were misaligned and had poor cosmetic appearance.
In response, [Appellant] uttered, you mean they could see my teeth in the video.
The Pottstown [Police] arrived in Lansford around 5:30 p.m.
Upon their arrival, Pottstown authorities noticed that [Appellant] was wearing similar shoes to those worn by one of the suspects in the video from the robbery [in Pottstown].
Authorities later conducted a search [of the Lansford residence].
During their search, authorities recovered items which matched the items stolen in the home invasion.
During the search of Defendant Bowen's cell phone authorities observed multiple messages between Defendant Bowen and a phone number ending in 1101.
One message read: Please, Devon. I love you. Answer me.
Another message read: I love you, Devon.
Based on these messages and other information indicated Defendant Bowen and [Appellant] were in a relationship.
Authorities conclude the number ending in 1101 belonged to [Appellant].
Authorities had also executed a search warrant with respect to [Charles] Williams' cell phone, [who was suspected to be a third person involved in the Pottstown robbery].
When examining the contents of Charles Williams' cell phone, there are text messages between his phone number and the phone number ending in 1101.
The number ending in 1101 sends a text message on the date of the robbery stating, ["]Top of the Morning, Bro. I'm up and ready.["]
Authorities also found other phone calls and text messages between Charles Williams' phone and the phone number ending in 1101 on the day of the robbery as well as the day after.
Based upon this information and other information contained in the search warrant application, Corporal Todd Istenes of the Pottstown Police Department obtained a signed search warrant from Judge Walker of the Montgomery County Court of Common Pleas to obtain subscriber information and call [] detail records relating to the phone number ending in 1101.
The [trial court] finds the testimony of the [Chief] was credible.N.T., Open Guilty Plea/Suppression Hearing, 7/22/22, at 131-35.
In his suppression motion, Appellant sought to suppress: (1) his arrest; (2) a statement he made to police; (3) the seizure of his cell phone; (4) the search warrant for his cell phone number ending in 1101; and (5) any information from a search of his cell phone. See Motion to Suppress, 7/13/22. He argued his arrest and subsequent seizure of his cell phone were unlawful. Id. at 3-4. The trial court denied the motion to suppress.
After a three-day trial, a jury found Appellant guilty of forty-one counts of robbery, conspiracy, and related offenses. Appellant was sentenced to an aggregate term of thirteen to twenty-six years of incarceration. The trial court denied Appellant's post-sentence motion, and this timely appeal followed. Appellant raises four issues for our review:
1. Did the lower court err in denying [Appellant]'s motion to suppress because [Appellant]'s arrest was not supported by probable cause and thus, his cell phone was illegally searched and seized and his statement was not preceded by requisite Miranda warnings?
2. Did the lower court err in denying [Appellant]'s motion to suppress cell phone records for [Appellant]'s phone (484-735-1101) where the affidavit of probable cause supporting the search warrant for the records failed to establish a nexus between the phone number and the crime in question?
3. Did the lower court impose an illegal sentence in that it imposed consecutive sentences for multiple counts of conspiracy when said counts were part of the same common or continuous conspiratorial relationship?
4. Did the lower court abuse its discretion when it sentenced [Appellant] to an aggregate term of 13 to 26 years imprisonment since such a sentence was significantly more severe than the sentence imposed on co-defendant, Annette Bowen, despite the fact that she was more culpable and had a higher prior record score?Appellant's Brief at 4-5.
Miranda v. Arizona, 384 U.S. 436 (1966).
Our standard of review when addressing a challenge to the denial of a suppression motion is
limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court's factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted.Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (internal citations omitted). Our scope of review is limited to the record created during the suppression hearing. In re L.J., supra.
"It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019). "If there is sufficient evidence of record to support the suppression court's ruling and the court has not misapplied the law, we will not substitute our credibility determinations for those of the suppression court judge." Commonwealth v. Johnson, 86 A.3d 182, 187 (Pa. 2014).
Appellant first claims that the trial court erred in denying his motion to suppress because his arrest and subsequent seizure of his cell phone incident to arrest were not supported by probable cause. See Appellant's Brief at 17-28. He contends that he was handcuffed "immediately after initiating the traffic stop" and the only basis for the traffic stop was that Appellant "fit the description in the BOLO notice." Id. at 21. Moreover, he asserts that Chief Soberick received information from the CI after he was arrested; therefore, that information cannot be considered in a probable cause analysis. Id. We disagree.
Appellant also asserts that his statement to police should be suppressed because he was not provided Miranda warnings. The entirety of Appellant's argument on this issue is: "Since his detention constituted an illegal arrest unsupported by probable cause the lower court erred in failing to suppress [the statement as] fruits of the arrest." Appellant's Brief at 28. We find this issue waived because Appellant failed to develop an adequate argument. See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en banc).
Here, the trial court found Chief Soberick had probable cause to arrest Appellant:
A police officer who actually makes a warrantless arrest does not need to have sufficient information to establish probable cause to arrest as long as the officer ordering the arrest possessed probable cause.
Here[, Appellant] was taken into custody by Lansford Police pursuant to the Pottstown Police's directive to obtain it.
Authorities have probable cause to seize [Appellant] where he was seen in a car with Defendant Bowen, who had been identified by the robbery victims, during the stop.
A CI informed [Lansford] authorities that there were guns and silver bars in the [Lansford] residence at 441 West Patterson Steet.
These were the same items reported stolen during the robbery.
Further, [Chief] Soberick of Lansford observed [Appellant] entering and departing from the Lansford residence.
Additionally, [Chief] Soberick's description of [Appellant]'s [characteristics to] Pottstown authorities allowed authorities to say that [Appellant] matched the description of the suspect in an armed robbery which had occurred just two days prior in Pottstown.Id. at 136 (cleaned up; emphasis added). In addition to the above, Chief Soberick obtained information from Bowen's neighbor that Appellant and a white male were seen going in and out of Bowen's residence. Id. at 77. He also searched Bowen's social media and found photos of Bowen and Appellant together, indicating they had a personal friendship or relationship. Id. at 75.
Appellant's assertion that he was handcuffed "immediately after initiating the traffic stop" is based on one part of an answer Chief Soberick provided: "I took them all into custody and detained them and contacted Pottstown [police]." Id. at 79. However, the Commonwealth then specifically asked Chief Soberick about the timeline of the traffic stop:
Q: Okay. And so to get the timeline straight. You conduct the stop. Everyone gets out of the car.
A: That's correct.
Q: And then when do you get the information from the CI?
A: During the traffic stop, actually.
Q: Okay. At this point during the traffic stop when you got that information from the CI, you have the descriptor of the person that was involved in the armed robbery, along with Annette Brown, what happened after that?
A: They were detained and transported back to the Lansford Borough Police Department to await the arrival of the detectives from Pottstown.N.T., 7/22/22, at 81 (emphasis added). Based on a review of the entire transcript, it is obvious the trial court found Appellant was arrested after Chief Soberick obtained information from the CI and Corporal Istenes of the Pottstown police department. That finding is supported by the record.
Appellant argues that Chief Soberick's testimony that Appellant matched the "general description" provided in the BOLO is the only relevant evidence that can be considered in a probable cause analysis. See Appellant's Brief at 21. It is undisputed that Chief Soberick consistently testified that Appellant "fit the description" of the suspect in the Pottstown robbery. It also is undisputed that the description on the BOLO merely said, "two Black males." N.T. 7/22/22, at 74. Chief Soberick was asked whether he was given other characteristics of the suspect, and he said "[n]ot initially, no." Id. (emphasis added). This statement implies that at some point, he was provided additional characteristics of the robbery suspect. However, no follow-up questions were asked at that time. Significantly, Chief Soberick testified that he was in constant communication with Corporal Istenes from the time of the traffic stop until Appellant arrived at the Lansford police station. Id. at 83, 97-98.
During the traffic stop, Chief Soberick obtained information from a CI. Id. at 80. The CI said: (1) that Appellant was inside the Lansford residence with Bowen; (2) that weapons were inside the residence; and (3) he provided a list of items in the residence that the CI believed were stolen. Id. at 82, 86. When Chief Soberick informed Corporal Istenes of the list of items, Corporal Istenes said these items matched the items stolen during the Pottstown robbery. Id. at 98. Additionally, during the traffic stop, Chief Soberick described Appellant to Corporal Istenes, and Corporal Istenes said Appellant matched the suspect in the surveillance video from the Pottstown robbery. Id.
The record supports that Chief Soberick's testimony that Appellant "fit the description" was based on the information he received from Corporal Istenes, and not simply the BOLO description. While Chief Soberick was asked several times about the description in the BOLO, he was never asked to describe what he told Corporal Istenes regarding Appellant's appearance and characteristics. When considering whether an officer possesses probable cause, we must bear in mind that:
Pennsylvania adheres to the vertical approach of the collective knowledge doctrine, which instructs that an officer with the requisite level of suspicion may direct another officer to act in his or her stead. However, where, . . . the arresting officer does not have the requisite knowledge and was not directed to so act, we hold the seizure is still constitutional where the investigating officer with probable cause or reasonable suspicion was working with the officer and would have inevitable and imminently ordered that the seizure be effectuated.Commonwealth v. Yong, 177 A.3d 876, 890 (Pa. 2018). Here, Chief Soberick was directed by Corporal Istenes to arrest Appellant. Corporal Istenes viewed the surveillance video of the robbery, identified the male suspect, was provided a description of Appellant from Chief Soberick, and determined the description matched the suspect in the video. Moreover, Appellant was with Bowen, who was identified as a suspect by the robbery victims. As a result, Corporal Istenes directed Chief Soberick to arrest Appellant. Id. at 98.
Accordingly, we conclude that Chief Soberick possessed probable cause to arrest Appellant for the Pottstown robbery pursuant to the collective knowledge doctrine. Yong, supra. The trial court's findings of facts are supported by the record, and the conclusions of law drawn from those facts are correct. Yandamuri, supra. Therefore, the trial court properly found Appellant's arrest was lawful and denied his motion to suppress.
Additionally, we note that the only item Appellant sought to suppress was his cell phone and information obtained from that phone. Although the phone was seized pursuant to a search warrant, police were unable to access Appellant's cell phone. N.T., 7/22/22, at 110. Thus, there was no evidence from the cell phone that could have been suppressed.
Appellant also claims that the trial court erred in denying his motion to suppress the subscriber information and call detail records for Appellant's phone because the affidavit of probable cause failed to establish a nexus between the phone number and the Pottstown robbery. See Appellant's Brief at 28-35. He contends that none of the averments in the affidavit of probable cause "contain evidence that [Appellant] used a cell phone in the planning of the robbery or possessed or used a cell phone during the crime." Id. at 35. We disagree.
To be valid, a search warrant must be supported by probable cause. Commonwealth v. Jacoby, 170 A.3d 1065, 1081 (Pa. 2017). Regarding search warrants, our Supreme Court has explained:
The existence of probable cause is measured by examining the totality of the circumstances. Probable cause exists where the facts and circumstances within the affiant's knowledge and of which he [or she] has reasonably trustworthy information are sufficient in and of themselves to warrant a [person] of reasonable caution in the belief that a search should be conducted. A magisterial district judge, when deciding whether to issue a search warrant, must make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. Conversely, [a] court reviewing a
search warrant determines only if a substantial basis existed for the magistrate to find probable cause.Id. at 1081-82 (internal citations and quotation marks omitted). In determining whether a warrant was supported by probable cause, our scope of review is limited to the four corners of the accompanying affidavit. Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003). A police officer's experience and training may be relevant factors in the probable cause determination. Thompson, 985 A.2d at 935. "Probable cause, at a minimum, must be individualized to the suspect and the circumstances of the case; it requires more than generalized statements about human behavior that are unsupported by the specific facts." Jacoby, 170 A.3d at 1084.
In finding that the warrant was supported by probable cause, the trial court stated:
As referenced earlier, there was ample probable cause to support [Appellant]'s arrest, and these same facts provide probable cause for an issuance of a search warrant with the phone ending in 1101.
Additionally, authorities included details regarding the results of the search conducted pursuant to the search warrant on the Lansford residence which also linked [Appellant] to the Pottstown home invasion.
There was also evidence linking this particular number to [Appellant] which was not procured as a result of any information obtained from his arrest.
This includes text messages recovered from Defendant Bowen's phone pursuant to a validly issued consent and text messages recovered from Charles Williams' phone [pursuant to] a validly issued search warrant.
The [affiant] referenced multiple factors which demonstrated the significant probability that [Appellant] had engaged in criminal activity and the evidence of this activity would be found on the phone number ending in 1101.
The commonsense assessment given all the information set forth in the affidavit demonstrates there was specific nexus between the phone number and the suspected crimes committed.N.T., Open Guilty Plea/Suppression Hearing, 7/22/22, at 139-40. We agree.
We find that, within the four corners of the affidavit, a substantial basis existed for the magistrate to find probable cause. See Jacoby, supra. Corporal Istenes articulated specific and individualized facts to establish probable cause to obtain subscriber information and call detail records for cell phone xxx-xxx-1101, namely: (1) a home invasion robbery occurred in Pottstown; (2) surveillance video captured three suspects, a female and two males; (3) the victims of the robbery identified Bowen as the female suspect; (4) the surveillance video provided officers with physical characteristics of and identifiable clothing worn by the male suspects; (5) Appellant was arrested with Bowen; (6) items from the Pottstown robbery, mail addressed to Appellant and clothing consistent with the clothing worn by one of the male suspects in the surveillance video was recovered from Bowen's residence; (7) a consent search of Bowen's cell phone revealed text messages that indicated cell phone number xxx-xxx-1101 belonged to Appellant; (8) Bowen implicated Charles Williams in the robbery; (8) several items stolen from Pottstown were recovered in Charles Williams' room; and (9) a search of Charles Williams' cell phone revealed several communications with cell phone number xxx-xxx-1101 on the day of, and the day after, the robbery. See Commonwealth's Response to Defendant's Motion to Suppress, Exhibit C-1.
The full identification of the number has been redacted for security purposes.
Additionally, Corporal Istenes described his knowledge and experience from prior investigations involving cell phone data:
I understand that cellular phone providers such as Verizon keep and maintain a wide range of information in the ordinary course of their business. This information, known generally as "subscriber information" includes information about the person(s) associated with the account that pays for cellular service. This information includes the name, physical address (location of service), and billing information associated with the purchase of and continuing payments for the use of that account. I also understand that providers like Verizon keep information about the use of their cellular devices. This information includes the IP (or internet protocol) address associated with that phone - a unique identifier associated with that device used to access the internet. It will also include information about the calls and text messages either made by or sent to the cell phone. These "call detail records" will include the number dialed/from which the call or text message was received, the duration of the call, potentially the content of the text message, as well as data about the cellular towers used to complete the communications. I understand that cellular devices . . . access the internet and sen[d]/receive calls by connecting wirelessly to tower(s), the locations of which are likewise saved. Information about these towers - specifically their sector and orientation information, which can provide information about the physical direction that the device was facing relative to the tower, as well as their physical location, address, longitude and latitude and related identifying data - can be used to identify the area in which the cellular device was located at the time of its use and, by extension, the location of the user at particular times. This cell tower data, GPS location and RTT are necessary to determine the location of the cell phone with phone number xxx-xxx-1101 from 11/9/2020 until 01/18/2021.Id. He further stated that the planning and execution of a home invasion robbery, such as the one committed here, "required forethought and communication among co-conspirators to plot and carry out." Id. Under the totality of the circumstances, the trial court properly denied suppression after finding that the search warrant was supported by probable cause. Jacoby, supra.
In his third issue, Appellant contends that the trial court imposed an illegal sentence when it imposed sentences for 14 counts of conspiracy that arose out of the same conspiratorial relationship. See Appellant's Brief at 36-38. The Commonwealth and the trial court agree that Appellant's sentence for multiple counts of conspiracy is illegal. See Trial Court Opinion, 7/19/23, at 16; see also Commonwealth's Brief at 26. However, the Commonwealth and the trial court contend that Appellant was only sentenced on five concurrent counts of conspiracy, and the remaining conspiracy counts merged for sentencing purposes. See id.
Appellant was initially charged with 105 total counts, 39 of which were conspiracy. He was sentenced on five counts of conspiracy - counts 4, 14, 28, 56, and 72. Appellant was found guilty of ten additional counts of conspiracy; however, those merged for sentencing. The remaining 24 counts of conspiracy were subsequently nolle prossed. Therefore, we agree that Appellant was sentenced on five counts of conspiracy, and that the sentences at four of those counts - 14, 28, 56, and 72 are to be vacated. However, remand is not necessary because those sentences are concurrent and vacatur of those four counts does not upset the overall sentencing scheme. See Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006); see also Trial Court Opinion, 7/19/23, at 16-17.
In his fourth issue, Appellant challenges the discretionary aspects of his sentence. Specifically, he contends that his sentence is more severe than his co-conspirator, Bowen, and his sentence must be reversed due to the "disparate treatment of factually identical cases." Appellant's Brief at 39-40.
Challenges to the discretionary aspects of sentencing are not entitled to appellate review as a matter of right. Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019). Rather, such challenges are considered petitions for allowance of appeal. Id. Thus, an appellant must invoke our jurisdiction by satisfying a four-part test: (1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect pursuant to Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Id.
Here, Appellant filed a timely notice of appeal, properly preserved the issue in his post-sentence motion, and his brief complies with Rule 2119(f) by providing a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. A claim of "disparate sentences between two or more co-defendants constitutes a substantial question necessitating our exercise of jurisdiction to review." Commonwealth v. Krysiak, 535 A.2d 165, 167 (Pa. Super. 1987). Thus, Appellant has invoked our jurisdiction, and we may address the merits. We review a sentencing court's determination for an abuse of discretion:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.Clemat, 218 A.3d at 959. A sentencing court must state its reason for the sentence on the record. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006). This can be satisfied by a trial court stating on the record that it reviewed the pre-sentence investigation report. Id. Our Supreme Court has stated:
Where [a] pre-sentence report exists, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention in engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would
be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Moreover, "Pennsylvania's sentencing system . . . is based on individualized sentencing." Commonwealth v. Walls, 926 A.2d 957, 966 (Pa. 2007). It is well-settled that co-defendants are not required to receive identical sentences; however, the trial court must indicate its reasons for differences in sentences between co-defendants. Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010). "This is not to say, however, that the court must specifically refer to the sentence of a co-defendant. Rather, it requires that when there is a disparity between co-defendant's sentences, a sentencing court must give reasons particular to each defendant explaining why they received their individual sentences." Id.
Here, the trial court had the benefit of a pre-sentence investigation and sentencing memorandum prepared by both sides. N.T., Sentencing 12/19/22, at 9. This alone satisfies the trial court's requirement to place its reasons for imposing a particular sentence on the record. Fowler, supra. Moreover, the trial court did state its reasons for the sentence imposed:
We note that Appellant and Bowen were not sentenced on the same date. Bowen entered a guilty plea on July 22, 2022 and was sentenced on November 1, 2022, after Appellant's trial.
The jury found that you and two others robbed and terrorized three victims at gun point. They were in fear for their life and were terrorized by the encounter. When people are at their home, which one of the victims was, or at the home of a friend, they should feel safe.
You and the other two stole that sense of security from those victims. Your conduct to rob and terrorize was planned and premeditated. As a result of what the jury found, you pose an immediate and future threat to the public, which necessitates a significant period of incarceration. Your actions involved multiple victims and a sentence is warranted for each of those victims. Otherwise, there would be a volume discount for your criminal conduct.
My sentence takes into account your egregious conduct, your victims, what they went through, and the need to protect the public. I do have the discretion to sentence in a mitigated range. To do so, I have to find there are mitigating factors. I cannot find any mitigating factors that justify a mitigated sentence. There's nothing redeeming about how you conducted yourself. Your conduct warrants a lengthy period of incarceration.
As to Annette Bowen, this was raised. There is a significant difference. Annette Bowen cooperated. Our system relies on people who cooperate, and that more than justifies her having a lesser sentence.N.T., Sentencing 12/19/22, at 29-30. In its 1925(a) opinion, the trial court further explained its reasons for the disparity in sentencing:
Ms. Bowen, at great risk to her well-being, chose to cooperate in the prosecution of this matter, accepted full responsibility for her actions and demonstrated remorse. Ms. Bowen also did not engage in any of the physical assaults upon the victims either by physically striking them or utilizing duct tape to tie up the victims. [Appellant], conversely, took an active role in assaulting the victims. [Appellant] also accepted no responsibility for his actions at the sentencing hearing, blamed his situation on his former attorney and the court system, and only demonstrated token remorse for the victims at the end of his allocution.
Trial Court Opinion, 7/19/23, at 22-23. The trial court also noted that Appellant threatened Bowen's safety during transport from the jail to the courthouse during Appellant's trial. Id. at 19.
Upon review, the record clearly demonstrates that the trial court stated its reasoning for imposing different and individualized sentences for Appellant and Bowen. Mastromarino, supra. Thus, we find no error.
Judgment of sentence affirmed in part and vacated in part.
Judge Bowes joins the memorandum.
Judge Lane files a concurring/dissenting memorandum.
Judgment Entered.
CONCURRING & DISSENTING MEMORANDUM
LANE, J.
I concur with the Majority's conclusion that no relief is due on the claim, of Devon Malcom Williams ("Williams"), that the trial court erred in denying suppression of records related to a cell phone attributed to him. However, for the reasons discussed infra, I respectfully disagree with the Majority's disposition of Williams' remaining issues.
First, I would conclude the trial court erred in finding the police had probable cause to detain Williams. While the Majority cites the trial court's findings of fact, my review of the certified record, as it existed at the time of the suppression ruling, reveals an absence of probable cause based on the following relevant details.
The Pottstown Police Department issued a "be on the lookout" ("BOLO") bulletin, which identified Annette Bowen ("Annette") and her address in Lansford Borough, Carbon County - which is approximately one and a half hours from Pottstown, where the underlying robbery occurred. N.T., 7/22/22, at 73, 74; see also Trial Court Opinion, 7/19/23, at 3 n.2. Lansford Police Chief Jeffrey Soberick, who received the BOLO bulletin, believed the robbery occurred "shortly before" the bulletin was sent, but did not know exactly when; I note the incident occurred two days earlier. Id. at 77. Chief Soberick knew Annette and her address through prior interactions. See id. at 75.
The BOLO bulletin stated Annette was involved in an armed robbery or home invasion with "two associated [B]lack males." N.T., 7/22/22, at 73, 74. Chief Soberick acknowledged that the BOLO contained no further information about the two other assailants, including their height, weight, age, or distinguishing physical characteristics. Id. at 74, 92. Furthermore, I note there was no indication the BOLO described the perpetrators' clothing, shoes, or eyewear.
Upon receiving the BOLO bulletin, Chief Soberick reviewed Annette's Facebook account and observed photos of Williams; however, no further evidence about these photos was adduced. See id. at 75. Chief Soberick drove by Annette's house and saw Annette and a white man exit a vehicle and enter the house. See id. at 76. Chief Soberick parked so that he could watch the front of Annette's house. After "a few minutes," he observed Annette's next-door neighbors leave and drive away. Id. at 76-77. Chief Soberick followed the neighbors. The chief knew the driver, stopped the vehicle, and asked if he knew who was in Annette's house. See id. at 77. The driver replied he had seen Annette entering her house with the white man Chief Soberick had seen, as well as with a Black man. See id.
Chief Soberick returned to surveilling Annette's house. See N.T., 7/22/22, at 78. Around this time, the chief learned an arrest warrant had been issued for Annette. See id. at 78-79. He then saw Annette, a white man, and a Black man - Williams - exit the house, enter a car, and drive away. See id. at 78. Chief Soberick followed them and called for additional police officers to assist. Another police car joined him, and they all "began to exit the town" and enter a "desolate area." Id. At this time, Chief Soberick effectuated what he termed a "felony traffic stop," as the BOLO bulletin had referred to an armed robbery and it was possible the vehicle's occupants were armed. Id. Chief Soberick was in full uniform and operating a marked police car. See id. at 87. Another police officer, "Officer Soberick" was with Chief Soberick during the vehicle stop. See id. at 88.
When asked why he did not arrest Annette at her home, Chief Soberick explained that his department lacked "manpower" and he did not want police officers to "be surprised with gunfire at the front door." N.T., 7/22/22, at 97.
The Commonwealth asked Chief Soberick whether he "activat[ed] the emergency lights on [his] police vehicle." N.T., 7/22/22, at 87. The chief replied only, "I was operating a marked unit, correct," and did not explain whether his emergency lights were on. Id.
The record does not indicate this officer's first name or whether he was related to the Chief.
I review in detail the testimony about the ensuing chronology of events. Immediately after the above statements concerning his decision to stop the vehicle, Chief Soberick testified as follows:
[Commonwealth:] And at that point, you knew that [Annette] was in that car?
[Chief Soberick:] That's correct. I saw her get in it.
Q. Okay. And then at this point of the traffic stop that you conducted, what happened next?
A. I took [Annette] into custody.
There was a white male in the car; I believe Dennis Kibler.
And then the [B]lack male seated with his defense counsel over there. (Indicating)
I took them all into custody and detained them and contacted Pottstown; not directly, though, through the com center.
Q. And at this point why were you detaining the other people in the car along with Annette . . . ?
A. I saw them leaving that residence. That residence was mentioned in BOLO, and that [B]lack male fit the depiction that were allegedly involved in the incident [sic].
Q. Okay. And,·again, the description you had at this point in the stop was just that it was a [B]lack male?
A. Correct. That's correct.
Q. Was there any additional information that you gained prior to performing the stop at this point?
A. Not prior to performing the stop, no.N.T., 7/22/22, at 79-80 (emphases added).
The Commonwealth's next question pertained to any additional information gathered during the remainder of the stop:
[Commonwealth:] So at the stop was there any additional information that you obtained?
[Chief Soberick:] Yes. I did - I was able to speak with . . . a confidential informant [("CI")] known to me, and that person advised that the gentleman, the [B]lack gentleman, that was one of the ones involved in the incident.Id. at 80.
The Commonwealth clarified that Chief Soberick talked to the CI after Annette, Williams, and the third occupant exited the vehicle:
[Commonwealth:] And so to get the timeline straight: You conduct the stop. Everyone gets out of the car.
[Chief Soberick:] That's correct.
Q. And then when do you get the information from the CI?
A. During the traffic stop, actually.Id. at 81 (emphasis added).
Finally, I note the testimonial evidence included only one other reference to Williams' being handcuffed, which arose during cross-examination:
[Williams' Counsel:] Was [Annette] handcuffed and actually formally arrested on the basis of that warrant issued in Montgomery County?
[Chief Soberick:] That's correct.
Q. Was . . . Williams also handcuffed after being taken out of the car?
A. All the occupants of the vehicle were secured.Id. at 88-89 (emphases added).
The vehicle stop commenced around 2:15 p.m., Annette and Williams were taken to the Lansford Police Station, and the Pottstown Police officers arrived at that station around 5:30 p.m. See N.T., 7/22/22, at 87, 101. No evidence was presented, however, as to how long the vehicle stop itself lasted nor when Anette and Williams were ultimately transported to the Lansford Police Station.
In any event, during the vehicle stop, Chief Soberick obtained additional information from various sources. As indicated above, he called a CI. However, Chief Soberick provided entirely inconsistent testimony as to what information was provided by the CI. On the one hand, the chief testified that the CI told him: (1) Williams was one of the men "involved in the incident;" and (2) the CI was in Annette's home with Annette and Williams, along with the weapons, silver, money, and other items taken during the Pottstown robbery. Id. at 80, 86. On the other hand, Chief Soberick denied receiving any of this information. Indeed, when asked if the CI had explained what Williams did in the Pottstown robbery, Chief Soberick replied, "Absolutely not. No." Id. at 86-87. Furthermore, Chief Soberick stated: (1) at that point of the vehicle stop, he "was[ not] fully aware" the above items were proceeds from the robbery, id. at 82; and (2) from the time of the vehicle stop to the arrival of Pottstown Police officers at the Lansford Police Station, he did "not receive[] any information indicating that . . . Williams was involved in the robbery in Pottstown[.]" Id. at 87 (emphasis added). Finally, Chief Soberick testified that as of the suppression hearing, he "still [did not] know the full details of" the Pottstown incident. Id. at 98.
Additionally, during the vehicle stop, Chief Soberick called Corporal Todd Istenes of the Pottstown Police. See N.T., 7/22/22, at 82-83. Chief Soberick described Williams and relayed the CI's information about the firearms, silver bars, and other items. Corporal Istenes confirmed those items were involved in the Pottstown robbery, stated that Williams "fit the description," and accordingly directed Chief Soberick to detain Williams until Pottstown Police officers arrived. Id. at 97-98.
On cross-examination, defense counsel asked Chief Soberick what probable cause he had for arresting Williams. See N.T., 7/22/22, at 111. Chief Soberick replied that he or one of his police officers had "already seen" a surveillance video and observed that Williams' build, glasses, clothing, and shoes matched those of one of the perpetrators. See id. at 111-14. No further testimony was given, however, as to when particularly the chief or one of his officers viewed the video.
Williams argued before the trial court that he was unlawfully "taken out of the car[ and] taken into custody without . . . probable cause." N.T., 7/22/22, at 66. The trial court denied relief, and the Majority has summarized the findings of fact announced by the court on the record at the hearing. See Majority Memorandum at 2-4, 7.
On appeal, Williams asserts the trial court erred in finding there was probable cause to support his warrantless arrest. Williams contends he was in custodial detention once Chief Soberick placed him in handcuffs "immediately after" stopping the vehicle. Williams' Brief at 21. Williams argues the officer's only basis for detaining him at this time was a claim that he matched the description in the BOLO bulletin, but Williams maintains that the sole relevant description in the BOLO bulletin was of a Black male. Williams insists that in the absence of any other identifying information in the BOLO bulletin, the "vague, general description" did not establish probable cause for Chief Soberick to arrest. Id. Williams further avers that the subsequent information provided by the CI and Corporal Istenes cannot show probable cause because it was provided to Chief Soberick after Williams was handcuffed and subjected to a custodial detention.
The trial court did not make any finding as to Chief Soberick's handcuffing Williams when he exited the vehicle, nor the chief's taking "them all into custody" before any communication with the CI or Pottstown Police. N.T., 7/22/22, at 79 (emphasis added). Instead, the trial court found Williams was taken into custodial detention later, when Corporal Istenes directed Chief Soberick to take Williams into custody. The trial court found that at this later time, Chief Soberick possessed the requisite probable cause to arrest Williams, based on: (1) Williams' exiting Annette's residence with Annette, and his presence in the vehicle with Annette; (2) the BOLO bulletin's information that Annette was involved in a robbery in Pottstown with two "associated African-American males;" (3) the information received from the CI during the vehicle stop, that Williams was present in Annette's home and that "the CI had observed guns and silver bars inside the house;" (4) that these were the same items reported stolen during the robbery; and (5) Corporal Istenes' confirmation that Chief Soberick's description of Williams matched the complainants' descriptions, as well as the police's observations of the perpetrator in the surveillance video. Trial Court Opinion, 7/19/23, at 12-13. The trial court concluded that under the totality of the circumstances, Corporal Istenes had sufficient probable cause to believe Williams participated in the robbery, and therefore had authority to direct Chief Soberick to arrest him. See id. at 13.
The Majority reasons that Williams was not taken into custody when he was handcuffed immediately upon the commencement of the vehicle stop. See Majority Memorandum at 8. The Majority acknowledges Chief Soberick's testimony that when he took Annette into custody, he also "took them all [sic] into custody and detained them and contacted Pottstown" Police. Id. (citing N.T., 7/22/22, at 79). However, the Majority emphasizes Chief Soberick's testimony that after he received information from the CI, he "detained" Williams and Annette and transported them to the police station. Id. The Majority concludes this exchange supported the "obvious" finding by the trial court that Williams was not arrested until "after" Chief Soberick obtained the additional information. Id. Thus, the Majority concludes, the information possessed by Chief Soberick at the time of this latter detention was sufficient to establish probable cause - and the chief did not rely solely on the information contained in the BOLO. See id. at 9.
I respectfully disagree. I would conclude that the trial court's finding, that Williams was only taken into custodial detention when Corporal Istenes directed that he be detained, is not supported by the suppression record. The trial court's finding ignores Chief Soberick's testimony that Williams was already handcuffed and in "custody" before he contacted either the CI or Pottstown Police. See N.T., 7/22/22, at 79-80 (Chief Soberick stating he "took them all into custody and detained them and [then] contacted Pottstown" Police, based on the chief's observation of them leaving Annette's residence and Williams' fitting the BOLO's description that a Black male was involved); see also id. at 88-89 (agreeing that Williams was "also handcuffed after being taken out of the car").
In sum, in my view the suppression record established two separate events. First, all three occupants of the vehicle were taken "into custody and detained" at the same time, and all three were handcuffed as they exited the vehicle, before Chief Soberick obtained further information from the CI or Pottstown Police. Id. at 79. I would conclude this was a custodial detention, which, again, the trial court did not address. Second, after Chief Soberick gathered information from the CI and Pottstown Police, Pottstown Police directed the chief to detain Williams. I would conclude this verbal directive was a non-event, as Williams was already in custody. Yet, this is the only "detention" that the trial court considered.
To the extent that the Majority implies that Williams' handcuffing was one and the same as Chief Soberick's detaining him at Pottstown Police's direction, I would disagree. When the Commonwealth examined Chief Soberick about the initiation of the traffic stop, it asked, "at this point of the traffic stop[,] what happened next?" N.T., 7/22/22, at 79. Chief Soberick clearly responded, "I took [Annette] into custody. There was a white male [and a Black male in the car]. I took them all into custody and detained them and contacted Pottstown" Police. Id. (emphasis added). The Commonwealth asked specifically, "at this point why were you detaining the other people in the car along with Annette . . . ?" Id. Chief Soberick responded he relied solely on the BOLO and his observation of Williams leaving Annette's house. See id. (Chief Soberick stating, "I saw them leaving that residence. That residence was mentioned in [the] BOLO, and that [B]lack male fit the depiction that were allegedly involved in the incident"). Within this same exchange, Chief Soberick confirmed the only "description [he] had at this point in the stop[ ] was just that it was a [B]lack male." Id. On cross-examination, defense counsel asked about handcuffing Annette and whether Williams was "also handcuffed after being taken out of the car," and Chief Soberick replied in the affirmative. Id. at 89 (emphasis added).
In any event, both the Majority and the trial court's proposed timeline assumes two factual premises that are not supported by the record. First, Annette would have been detained or arrested first, while Williams was not arrested until some time later, after Chief Soberick's numerous phone calls with the CI and Pottstown Police. However, Chief Soberick's clear testimony is that upon stopping the vehicle, he "took them all into custody and detained them and contacted Pottstown" Police. N.T., 7/22/22, at 79 (emphasis added). Second, under this same scenario, Williams would have voluntarily stayed at the scene while Chief Soberick made the numerous phone calls to gather information. However, the Commonwealth, who bore the burden of proving Williams' rights were not violated, presented no evidence that Williams was permitted to leave at any time. See Commonwealth v. Moore, 310 A.3d 802, 806 (Pa. Super. 2024) (stating that "once a motion to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights).
For the foregoing reasons, I respectfully disagree with both the trial court and the Majority's conclusion that Williams was not taken into custody until Chief Soberick subsequently received a directive from Pottstown Police to detain him. The suppression record, when read as a whole, does not support such a finding. See Commonwealth v. Bernard, 218 A.3d 935, 940 (Pa. Super. 2019) (setting forth appellate standard of review). Instead, Williams was detained at the inception of the vehicle stop, when he was handcuffed, taken "into custody and detained," and not permitted to leave. See N.T., 7/22/22, at 79. Again, I emphasize that neither the suppression hearing transcript nor the trial court's opinion indicate the trial court addressed this handcuffing.
Accordingly, I would determine the trial court mis-framed the issue as whether Chief Soberick or Pottstown Police possessed probable cause to arrest Williams after information was gathered from the CI and the Pottstown Police. Any information that the Lansford Police learned after the handcuffing and taking Williams into custody at the inception of the vehicle stop, even if during the same vehicle stop, was not relevant to the probable cause determination. See Commonwealth v. Jackson, 331 A.2d 189, 191 (Pa. 1975).
Instead, the proper inquiry was whether Chief Soberick had probable cause when he handcuffed Williams at the outset of the vehicle stop. See Bernard, 218 A.3d at 940; see also Jackson, 331 A.2d at 191. I would conclude he did not. I reiterate that the BOLO bulletin provided a physical description of merely "two associated [B]lack males." N.T., 7/22/22, at 74. Chief Soberick confirmed "[t]hat was all that [he] had at that time," as there was no description of the two men's height, weight, age, or any distinguishing physical characteristics. Id. at 74, 92. The BOLO was silent as to the perpetrators' clothing, shoes, or eyewear. While Chief Soberick did learn one of the perpetrators had misaligned teeth, he could not recall when, and in any event, the chief did not make any indication that the appearance of Williams' teeth was a factor in why he handcuffed him. See id. at 92.
I also consider that although Chief Soberick "knew" the armed robbery or home invasion occurred sometime "shortly before" the BOLO bulletin, he did not know particularly when. N.T., 7/22/22, at 73, 77. I reiterate that the robbery occurred two days earlier.
With respect to Chief Soberick's investigation of Annette's social media, he testified: he knew of Annette and her address, he "started scouring what [he] could find on social media for" her, and he "found . . . Williams['] associated pictures associated [sic] with her on Facebook." Id. at 75. This was the sum of the evidence about Annette's Facebook account. There was no evidence about when or where the photographs were taken, when they were posted to the Facebook account, what the photographs depicted, or whether they showed any link to the crime or proceeds of the crime. Indeed, while the police investigation later revealed Williams and Annette were in a romantic relationship, there was no testimony at the suppression hearing about whether Annette's Facebook account showed the nature of their relationship.
Finally, the remaining evidence presented was that Chief Soberick initially observed Annette exiting her car with a white man, and subsequently, Annette exiting her house with a white man and a Black man, and all three entering a car and driving away. There was no suggestion that the car was connected to the Pottstown robbery. Under the totality of the circumstances, I would conclude the sum of this information would not support a finding that Chief Soberick had probable cause when he handcuffed Williams and took him into custody at the inception of the vehicle stop.
I consider the decision in Commonwealth v. Burton, 770 A.2d 771, 782 (Pa. Super. 2001). In that appeal, the defendant argued police officers "did not have a specific description when searching for him, and thus did not have probable cause to arrest him." Id. at 782. This Court first summarized:
When an arrest is based on a description, the description must be specific. See [Jackson, 331 A.2d at 191]. In Jackson, the police dispatcher notified officers that "two [African American] males in dark clothing, 5'6" to 5'8" in height, with medium builds, medium to dark complexions and semi-bush haircuts" had shot a man. An hour later, an officer noted an elderly man giving money to [the defendant, who] match[ed] the physical description of the suspects but [was] wearing different clothing. The officer approached the two and asked if anything was wrong. Despite the fact that the elderly man responded in the negative, the officer arrested the [defendant] based on his similarity to the description. Our Supreme Court held that the officer lacked probable cause to
arrest [Jackson] because of the time lapse between the murder and the arrest, as well as the generality of the description. . . .
A general description, however, does not always negate probable cause. In Commonwealth v. Chase, . . . 575 A.2d 574, 576 (Pa. Super. 1990), a police officer told his partner that he "had just purchased narcotics from a [B]lack man in a blue shirt at a particular street corner." The second officer went to the street corner, saw the suspect matching the description, and arrested him. The Court distinguished Jackson based on the fact that the police saw the suspect matching the description at the crime scene immediately after the crime. Consequently, the Court held that the officer had probable cause to arrest [the suspect]. Thus, where the description of the suspect is a general one, an officer has probable cause to arrest a suspect where the suspect is "the only individual[] who matched the description and [is] found at the same location within a relatively short period of time." Commonwealth v. Toro, . . . 638 A.2d 991, 1004 (Pa. Super. 1994). . . .Burton, 770 A.2d at 782-83 (emphases and some citations omitted and footnote added).
Jackson involved "dragnet arrests," condemned by the Jackson Court, in which police arrested fifteen to twenty people matching the description of the perpetrator within the first few hours of a killing. Jackson, 331 A.2d at 190 n.3. No such "dragnet arrest" occurred in this matter. Nevertheless, I construe the above discussion, as set forth in Burton, to be relevant in reviewing Williams' instant suppression issue.
The Burton Court reviewed the facts presented in the matter before it:
Hatboro Officer . . . Krzemien . . . and his partner. . . received a call at 6:47 p.m. that a light skinned [B]lack or Puerto Rican male wearing dark shorts, sunglasses, a hat, and white socks pulled up to his knees and riding a blue bicycle had indecently assaulted a female juvenile near the Crooked Billet School on Meadowbrook Avenue. Twenty to forty minutes later, Officer Krzemien received another call that a [B]lack male on a bicycle had restrained a nine-year-old girl nearby at York and Monument Avenues. After he questioned her, Officer Krzemien received a call that a tall, thin, white or light skinned [B]lack male with facial hair riding a bicycle
had attempted to steal a vehicle from a man on York Street. In between the time Officer Krzemien was speaking with the two victims, nearby Horsham Township called [him] for help with an incident involving a tall, thin, [B]lack male wearing dark shorts, a hat, sunglasses and a t-shirt, riding a bike, who had grabbed a female jogger. While Officer Krzemien was searching for the suspect, two boys reported that a light-skinned [B]lack male with a mustache wearing dark shorts, a light colored t-shirt, and riding a Huffy mountain bike had robbed them. While the officers were searching for the suspect, the McPeak family, whose house was 450 yards from the robbery scene, reported an attempted burglary. Minutes later, the officers got a call of a burglary at the Frieman residence, directly behind the McPeak residence. Immediately thereafter, the officers received a call from the Staples home, 750 yards away. The dispatcher told officers that a [B]lack man with dark shorts tried to take a young girl from her home but fled when her dog confronted him. Before going to the scene, the officers proceeded to the park 325 yards from the Staples residence. As Officer Krzemien entered the parking lot, he saw a blue bicycle and purse in the grass. He opened the purse and saw Ms. Frieman's identification inside. The officers then saw a light-skinned [B]lack male with a mustache wearing black shorts and a white shirt about twenty-five yards away heading toward the bicycle, who fled upon seeing the officers. The officers followed him and arrested him.Burton, 770 A.2d at 783 (record citations omitted).
The Burton Court found these facts were "more similar to Chase and Toro than Jackson." Id. at 783. The Court thus concluded the officers had probable cause to arrest the defendant:
This is more than enough evidence to demonstrate that the officers had probable cause to arrest [the defendant]. Numerous people gave them consistent physical descriptions of [the defendant], his clothing, and his bicycle. These descriptions were fairly specific. Further, [the defendant] was next to the last crime scene immediately following the crime. . . .Id. at 783-84.
The evidence presented in this case falls far short of that presented in Burton and Chase, and even Jackson. In Burton, the police officers received, within an approximate one hour span, six consistent descriptions of a perpetrator - a light skinned Black male with facial hair, wearing dark shorts, light colored t-shirt, and sunglasses, and riding a bicycle. The officers observed the defendant, who matched these physical descriptions, within minutes of the last call, and the defendant fled upon seeing the officers. See Burton, 770 A.2d at 783. Here, there was no such detailed description of Williams or the third accomplice, beyond the information that two perpetrators of the home invasion were Black males. Furthermore, unlike the defendant in Burton, Williams was not detained until two days after the incident, he was detained in a different county, one and half hours away from Pottstown, and he did not flee when their vehicle was stopped by Chief Soberick.
In Chase, a police officer described "a [B]lack man in a blue shirt" at a particular street corner, and his partner "immediately" went to that corner and arrested a man matching the description. Burton, 770 A.2d at 783. Here, the BOLO bulletin's description of the perpetrators was even more vague; it merely referred to "two associated [B]lack males" and it did not include any clothing. N.T., 7/22/22, at 74. Additionally, there was no evidence, nor any claim by the Commonwealth, that the vehicle stop was initiated at the same place as, and within a relatively short period after, the Pottstown robbery.
Finally, in Jackson, the description of the perpetrators of a shooting was of "two [African American] males in dark clothing, 5'6" to 5'8" in height, with medium builds, medium to dark complexions and semi-bush haircuts." Jackson, 331 A.2d at 190. Our Supreme Court held police officers lacked probable cause to arrest the defendant, who matched the physical description but wore different clothing, and was observed "[a]pproximately one hour and one block from the scene of the crime." Id. Again, here, there was even less information available to Chief Soberick.
To summarize, I would hold the following evidence, presented at the suppression hearing, was insufficient to establish probable cause to handcuff Williams at the outset of the vehicle stop: the physical description about the two associated perpetrators was merely that they were Black males; Williams is a Black male; Chief Soberick did not know when the Pottstown home invasion occurred; both Annette and her home address were identified in the BOLO bulletin; the chief observed Williams exiting Annette's home, with Annette and a white male, and observed the three enter a car and drive away; and Williams also appeared in undated photographs on Annette's Facebook account. This information was patently insufficient to form a reasonable belief that Williams had committed or was in the process of committing a crime. See Bernard, 218 A.3d at 940.
For the foregoing reasons, I would reverse the portion of the suppression order denying suppression of evidence of Williams' detainment, and accordingly vacate Williams' convictions and judgment of sentence.
Accordingly, I would further hold Williams' statement at the police station, concerning the appearance of his teeth, should have been excluded on the ground it was "fruit of an unlawful detention." Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa. Super. 2021). Thus, I would also reverse the portion of the trial court's order denying suppression of this statement.
Finally, while the Majority grants relief on Williams' claim that his multiple sentences for conspiracy were illegal, I would not reach this issue based on my conclusion above that this Court should reverse portions of the suppression order. As stated above, I concur with the Majority's conclusion that no relief is due on Williams' suppression claim concerning the records related to a cell phone.
For the foregoing reasons, I respectfully concur in part and dissent in part.