NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. KEVIN MOORE Appellant No EDA 2012 Appeal from the Judgment of Sentence August 13, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR BEFORE: GANTMAN, J., OLSON, J., and PLATT, J.* MEMORANDUM BY GANTMAN, J.: FILED MARCH 20, 2014 Appellant, Kevin Moore, appeals from the judgment of sentence, imposed in the Philadelphia County Court of Common Pleas, following his bench trial convictions for manufacture, sale, or rental of illegal recording or recorded devices, trademark counterfeiting, name of manufacturer on recorded device packaging, and intentional possession of a controlled substance. 1 We affirm. follows: The trial court opinion sets forth the relevant facts of this case as On May 12, 2011, at about 4:40 p.m., Philadelphia Police 1 18 Pa.C.S.A. 4116(d); 4119(a)(1); 4116(e); 35 P.S (a)(16), respectively. * Retired Senior Judge assigned to the Superior Court.

2 Officer William Barr was traveling eastbound on the 1300 block of West Erie Avenue in Philadelphia, Pennsylvania. At this time, Officer Barr observed Kevin Moore, [Appellant], standing next to a blue newspaper stand, facing a taller black male wearing a black shirt. [Appellant] was holding a black and orange bag. Officer Barr then observed [Appellant] reach into the bag and grab an item, which Officer Barr recognized as a bootleg copy of a DVD. At this time, Officer Barr instructed his partner, who was driving, to make a U-turn so that they could investigate. As the officers turned the car around, Officer Barr observed [Appellant] hand the bootleg to the other black male and the other black man beginning to retrieve money. Officer Barr recognized this as a counterfeit bootleg transaction, as he had previously made [similar] arrests in this area. Based on his observations, Officer Barr exited the patrol car to stop [Appellant] for possible trademark violations. Officer Barr directed [Appellant] to stop and [Appellant] took off running. Officer Barr began to pursue [Appellant] on foot, first westbound on Erie towards Germantown, then southbound on Germantown Avenue. [Appellant] eventually ran into an unknown black female and fell to the ground. [Appellant] was subsequently placed into custody. Recovered from [Appellant s] bag and also from a stack of boxes next to the blue newspaper stand were 281 bootleg DVDs with several copies of titles that were currently in movie theaters and 109 music CDs of various artists. Also recovered from [Appellant s] pants was an Advil pill bottle containing Advil and another pill container containing three pills with Watson 479 written on them, which later tested positive for Oxycodone, and seventeen pills with GG258 written on them, which later tested positive for Alprazolam. [Appellant] was arrested and charged with manufacture, sale or rental of illegal recording or recorded devices, knowing and intentional possession of a controlled substance, trademark counterfeiting, and name of manufacturer on recorded device packaging

3 (Trial Court Opinion, dated May 29, 2013, at 1-3) (internal citations omitted). After the court heard and denied Appellant s suppression motion on June 25, 2012, the court proceeded with Appellant s bench trial. The trial court found Appellant guilty of manufacture, sale, or rental of illegal recording or recorded devices, trademark counterfeiting, name of manufacturer on recorded device packaging, and intentional possession of a controlled substance. The court sentenced Appellant on August 13, 2012, to six (6) to twelve (12) months incarceration for the trademark counterfeiting violation and imposed no further penalties on the other violations. Appellant filed a timely notice of appeal on August 17, On August 23, 2012, the court ordered Appellant to file a Rule 1925(b) statement within thirty (30) days, and Appellant complied on September 19, Appellant raises the following issue for our review: DID NOT THE [TRIAL] COURT ERR IN DENYING APPELLANT S MOTION TO SUPPRESS PHYSICAL EVIDENCE UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS WHERE APPELLANT WAS SEIZED, ABSENT REASONABLE SUSPICION OR PROBABLE CAUSE, WHEN A POLICE OFFICER ORDERED HIM TO STOP AFTER WITNESSING HIM HAND A DVD OR CD TO AN UNKNOWN INDIVIDUAL, AND HIS SUBSEQUENT FLIGHT AND ABANDONMENT OF THE BAG AND BOXES CONTAINING DVDS AND CDS OCCURRED AFTER HIS ILLEGAL SEIZURE? (Appellant s Brief at 3). Appellant contends the police officer illegally seized Appellant prior to his flight. Appellant maintains the officer exited his police vehicle, approached Appellant, and ordered him to stop. Appellant claims a - 3 -

4 reasonable person would not feel free to leave in this situation. Appellant argues the police officer lacked reasonable suspicion or probable cause for the initial stop or to detain Appellant, the officer s initial seizure was unjustified, and the officer forced Appellant s subsequent abandonment of contraband during his flight. Appellant submits the pills recovered from his person were fruit of the initial illegal seizure. Appellant complains the trial court erred in denying his motion to suppress physical evidence, including the contraband Appellant discarded subsequent to the unjustified seizure and the pills recovered from his person during the illegal search. Appellant concludes he is entitled to have the suppression order reversed and the case remanded for a new trial without all of the illegally seized evidence. We disagree. We examine this issue subject to the following principles: Our standard of review in addressing a challenge to a trial court s 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. [W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts. Commonwealth v. Hope L. Williams, 941 A.2d 14, (Pa.Super. 2008) (en banc) (internal citations and quotation marks omitted). Further, - 4 -

5 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. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)). Contacts between the police and citizenry fall within three general classifications: The first [level of interaction] is a mere encounter (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an investigative detention must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally an arrest or custodial detention must be supported by probable cause. Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011) (quoting Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa. 668, 876 A.2d 392 (2005)). An investigative detention constitutes a seizure of a person and thus activates the protections of Article 1, Section 8 of the Pennsylvania Constitution. Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (quoting Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003)). To institute an investigative detention, an officer must have reasonable suspicion of criminal activity: Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those - 5 -

6 observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate. Jones, supra (internal citation omitted). Probable cause is made out when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a [person] of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Thompson, 604 Pa. 198, 203, 985 A.2d 928, 931 (2009) (internal quotation marks omitted). The question we ask is not whether the officer s belief was correct or more likely true than false. Rather, we require only a probability, and not a prima facie showing, of criminal activity. In determining whether probable cause exists, we apply a totality of the circumstances test. Id. (emphasis in original) (internal citations and quotation marks omitted). Further, to prevail on a suppression motion, a defendant must demonstrate a legitimate expectation of privacy in the area searched or effects seized, and such expectation cannot be established where a defendant has meaningfully abdicated his control, ownership or possessory interest. Commonwealth v. Dowds, 563 Pa. 377, 388, 761 A.2d 1125, 1131 (2000). Pennsylvania law sets forth the concept of abandonment as follows: - 6 -

7 The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possesses. Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. Commonwealth v. Robert Williams, 551 A.2d 313, 315 (Pa.Super. 1988) (quoting Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, (1976)) (internal citations and emphasis omitted). Evidence of abandonment must plainly demonstrate the individual s attempt to dissociate from the property. Commonwealth v. Johnson, 636 A.2d 656 (Pa.Super. 1994), appeal denied, 539 Pa. 646, 651 A.2d 534 (1994) (holding defendant who made conscious effort to dissociate himself from drug supply in event of police intervention had effectively abandoned any reasonable expectation of privacy in bag containing narcotics). Police officers may not force or coerce abandonment of evidence through improper or unlawful acts; however, police presence does not itself render the abandonment forced or coerced. Commonwealth v. Pizarro, 723 A.2d 675, (Pa.Super. 1998) (stating police cruiser passing through neighborhood on routine patrol does not amount to police coercion - 7 -

8 compelling defendant s abandonment of contraband); Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa.Super. 1998), appeal denied, 558 Pa. 617, 737 A.2d 741 (1999) (holding mere approach by law enforcement official does not amount to police coercion requiring suppression of evidence discarded by defendant; where police have reasonable suspicion to justify investigatory stop, contraband discarded by defendant at inception of pursuit was legally abandoned and therefore not subject to suppression ). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sean F. Kennedy, we conclude Appellant s issue merits no relief. The trial court opinion fully discusses and properly disposes of the question presented. (See Trial Court Opinion, filed May 29, 2013, at 4-6) (finding police officer had reasonable suspicion to execute initial stop of Appellant, based on officer s observation of bootleg transaction, given officer s prior experience of arrests for bootleg transactions in that location; together with Appellant s flight, officer had probable cause to arrest Appellant and seize bag and boxes Appellant had abandoned in plain view; police properly searched Appellant s person incident to arrest and recovered bottle containing controlled substances; recovery of bag and boxes abandoned in plain view yielded counterfeit bootleg DVDs and CDs). Accordingly, we affirm on the basis of the trial court s opinion. Judgment of sentence affirmed

9 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/20/

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