Com. v. Harris, L.

J-S50042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LERON FRANK HARRIS

Appellant No. 1451 MDA 2015

Appeal from the Judgment of Sentence June 26, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0004713-2014

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 08, 2016

Appellant, Leron Frank Harris, appeals from the June 26, 2015

aggregate judgment of sentence of two to five years’ imprisonment, imposed

after Appellant was found guilty of one count each of possession with intent

to deliver (PWID), intentional possession of a controlled substance, and

possession of drug paraphernalia.1 After careful review, we affirm.

The trial court summarized the relevant factual history of this case as

follows.

At the hearing held on Appellant’s Suppression

Motion, the Commonwealth presented the testimony

of Dauphin County Probation Officer Sean Hamor

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32),

respectively.

J-S50042-16

(“PO Hamor”) and Harrisburg City Police Officer

Nicholas Ishman (“Ofc. Ishman”). At or about 7:53

p.m. on the evening of August 16, 2014, the Officers

were partnered on routine patrol as part of the

Dauphin County Street Crimes Unit (“SCU”). The

SCU is a team of law enforcement officers consisting

of police, county probation officers and state parole

officers who patrol high crime areas and address any

violent crimes or drug transactions that they

encounter.

While on patrol, Ofc. Ishman and PO Hamor

were driving in an unmarked police van on Woodbine

Street in Harrisburg when they spotted Appellant

standing with another mate, later identified as David

Bucci, in Wharton Alley. When they turned the

corner onto Wharton Alley, Ofc. Ishman, who was

familiar with Appellant, saw money in his left hand

and observed him put something down the front of

his pants. Although he was not Appellant’s

supervising Probation Officer, PO Hamor was familiar

with Appellant as he had seen him report to PO

Anglemeyer. Ofc. Ishman reported to PO Hamor

what he had seen so, the two decided to make

contact with Appellant.

Ofc. Ishman and PO Hamor turned onto

Wharton Alley without emergency lights or sirens

activated. Upon exiting the police vehicle, Appellant

walked up to Ofc. Ishman greeted him and shook his

hand. [Ofc.] Ishman testified that he did not

indicate to Appellant that he wanted to speak to him

or that Appellant was not free to leave the scene.

Ofc. Ishman then walked over to Mr. Bucci who was

standing by his truck that was parked in the alley.

PO Hamor then exited the car to make a

routine probation contact with Appellant. Appellant’s

demeanor was nervous and shaky. PO Hamor gave

him a pen and paper to write down his name and

probation officer’s name and he continued to shake

while performing the task. PO Hamor never told

Appellant that he was not free to leave; rather, he

asked for consent to search his person which consent

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was granted. Approximately $200 in cash and a

cellphone were found during the search. While

searching him, PO Hamor shook Appellant’s shorts

which caused a rubber band to fall out which was

spotted by Ofc. Ishman who was now standing about

5 feet away. Once he was alerted to the rubber

band, PO Hamor asked Appellant if he had any

contraband on him to which he replied no. PO

Hamor followed up with a request for consent to

search down his pants; Appellant agreed and

unbuckled his belt. PO Hamor pulled the waistband

away from Appellant’s stomach and immediately saw

a bag of suspected crack cocaine on top of his

private parts. Appellant reacted by repeatedly

saying “I’m done, I’m done.” The substance found in

Appellant’s pants field tested positive as crack

cocaine.

On August 16, 2014, around 6:00 p.m., David

Bucci … called Appellant, a person he knew as

“Ralph”, to make arrangements to buy $20 worth of

crack cocaine. Mr. Bucci had been in contact with

Appellant numerous times prior to August 16, 2014,

to purchase illegal drugs. He indicated that the

usual practice was for him to call Appellant to see if

he had cocaine available and, if so, meet on Wharton

Street. On the date of the incident, the pair was to

meet at approximately 7:00 p.m. on Wharton Street

off Woodbine Street. Appellant instructed Bucci to

call him when he arrived at the meeting spot so he

could come out of his apartment building and

consummate the drug transaction.

Bucci drove to the meeting location with his

fiancée who waited in his truck. After notifying

Appellant by phone that he had arrived, Appellant

met with Bucci on the sidewalk outside of the

apartment building on Wharton Alley. While making

the exchange, Bucci and Appellant saw a police

vehicle turn down the alley which caused them to go

separate ways – Appellant towards his apartment

building and Bucci to his truck.

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After exiting the police vehicle, Ofc. Ishman

approached Bucci and asked why he was there.

Bucci lied at first about the reason for being at the

location; however, he eventually admitted that he

was there to buy drugs. Upon request, Bucci

granted Ofc. Ishman permission to search his person

but, according to Bucci, since he admitted to the

reason for meeting with Appellant, the search never

occurred. At trial, Bucci identified Appellant as the

person named “Ralph” from whom he would

purchase crack cocaine.

Ofc. Ishman’s and PO Hamor’s testimony was

essentially the same as the testimony provided

during the suppression hearing with further

amplification of some details relating to the

encounter with Appellant and Bucci. When Ofc.

Ishman first spotted Bucci and Appellant, they were

standing at the rear of the apartment building on

Wharton Alley. He stated that the two men

immediately stopped speaking and Appellant shoved

something down his pants. After shaking Appellant’s

hand, he told Ofc. Ishman that the men were talking

about a job. Ofc. lshman then proceeded to speak

with Bucci. Initially Bucci told Ishman that the pair

had been talking about tattoos for his fiancée but,

eventually he admitted that he was there for a

cocaine purchase. After Bucci consented to a search

of his person, Ofc. Ishman found no contraband.

PO Hamor was informed by Ofc. Ishman that

he had seen Appellant shove something down his

pants. PO Hamor made contact with Appellant after

lshman began speaking with Mr. Bucci. At trial, PO

Hamor reiterated the details of his encounter with

Appellant up to the point of the consensual search of

his pants where the bag of suspected crack cocaine

was found.

Ofc. Ishman took custody of the bag and field

tested the substance. The substance recovered from

Appellant field tested positive as cocaine. Ishman

searched Appellant incident to the arrest after finding

the baggie and recovered a cellphone and $205 in

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the form of two $100 bills and a $5 bill. Ofc. Ishman

got permission to use Mr. Bucci’s cellphone to call

the contact number listed as Ralph. Upon placing

the call from Bucci’s phone, Appellant’s cellphone

rang.

Ofc. Ishman submitted the recovered

substance to the Pennsylvania State Police (“PSP”)

Forensic Lab for testing. The parties stipulated to

the admission of the PSP lab report into evidence.

The report indicated that the substance recovered

from Appellant was crack cocaine that weighed 5.76

grams.

The Commonwealth also presented the expert

testimony of Chief John Goshert (“Chief Goshert”) of

the Dauphin County Criminal Investigation Division

(“CID”). After testifying to his training, experience

and background, Chief Goshert was qualified as an

expert in street level drug trafficking without

objection.

Chief Goshert testified that he had reviewed

the police report and the evidence related to this

case. Chief Goshert was given a hypothetical upon

which to determine whether he was able to form an

opinion regarding whether the cocaine recovered in

this matter was for personal use or for distribution.

After considering the hypothetical factual scenario

and reviewing the PSP lab report, Chief Goshert

opined that the drugs recovered in this case were

possessed with the intent to sell or deliver to another

person.

Chief Goshert testified to the many factors

which led him to his opinion which included his

experience with significant drug trafficking at that

location; the fact that the secreted area of the

location eased the facilitation of a drug transaction;

and, the actions of the two men were synonymous

with persons engaging in a drug transaction. Chief

Goshert found the significant amount of cocaine

recovered along with the fact that a device by which

a person may smoke the crack cocaine was not

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found and packaging in which it was found are

inconsistent with personal use. An additional factor

considered was the presence of a significant amount

of cash given Appellant’s lack of employment.

Trial Court Opinion, 1/12/16, at 3-8.

Appellant filed a motion to suppress on December 23, 2014, for which

the trial court conducted a hearing on January 26, 2015. After post-hearing

briefing, the trial court entered an order on February 27, 2015, denying

Appellant’s motion to suppress.

Appellant proceeded to a jury trial on June 3, 2015, at the conclusion

of which, the jury found Appellant guilty of intentional possession and drug

paraphernalia counts, but deadlocked on PWID. Appellant proceeded to a

second jury trial on June 11, 2015, limited to the one count of PWID, at the

conclusion of which, the jury found Appellant guilty of that offense. On June

26, 2015, the trial court imposed an aggregate sentence of two to five years’

imprisonment.2 That same day, Appellant filed a timely post-sentence

motion, which the trial court denied on August 10, 2015. On August 24,

2015, Appellant filed a timely notice of appeal.3

On appeal, Appellant raises the following four issues for our review.

____________________________________________

2

Specifically, the trial court sentenced Appellant to two to five years’

imprisonment for PWID, a concurrent six months’ probation for possession of

drug paraphernalia, and no further penalty on intentional possession.

3

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

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I. Whether the trial court erred in denying

Appellant’s motion to suppress evidence where

the police and probation officer lacked

reasonable suspicion to conduct an

investigative detention[,] in violation of Article

I, Section 8 of the Pennsylvania Constitution

and the Fourth Amendment to the United

States Constitution?

II. Whether the trial court erred in denying

Appellant’s motion to suppress evidence where

the police and probation officer lacked

reasonable suspicion to conduct a probation

search, in violation of Article I, Section 8 of the

Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution?

III. Whether the trial court erred in denying

Appellant’s post-sentence motion where the

verdict was against the weight of the evidence

so as to shock one’s sense of justice where the

Commonwealth never showed that [] Appellant

engaged in acts which constitute the offense of

which he was convicted?

IV. Whether the Commonwealth failed to present

sufficient evidence to sustain Appellant’s

convictions where the Commonwealth did not

prove that Appellant possessed the drugs with

the intent to deliver them?

Appellant’s Brief at 8-9 (some capitalization omitted).

We elect to address Appellant’s issues in reverse order for ease of

appellate review and analysis. See generally Commonwealth v. Stokes,

38 A.3d 846, 853 (Pa. Super. 2011) (stating, “a successful sufficiency of the

evidence claim warrants discharge on the pertinent crime, [therefore,] we

address those claims first[]”). In his fourth issue, Appellant avers that the

Commonwealth failed to provide sufficient evidence of PWID, specifically that

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he possessed the drugs in question with the intent to deliver. Appellant’s

Brief at 36-38. The Commonwealth counters that through Bucci and Chief

Goshert, their testimony was sufficient to establish the “intent to deliver”

element of the offense. Commonwealth’s Brief at 31-32.

We begin by noting our well-settled standard of review. “In reviewing

the sufficiency of the evidence, we consider whether the evidence presented

at trial, and all reasonable inferences drawn therefrom, viewed in a light

most favorable to the Commonwealth as the verdict winner, support the

jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson,

91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.

Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its

burden by wholly circumstantial evidence and any doubt about the

defendant’s guilt is to be resolved by the fact finder unless the evidence is so

weak and inconclusive that, as a matter of law, no probability of fact can be

drawn from the combined circumstances.” Commonwealth v. Watley, 81

A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate

court, we must review “the entire record … and all evidence actually

received[.]” Id. (internal quotation marks and citation omitted). “[T]he

trier 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.”

Id. (citation omitted). “Because evidentiary sufficiency is a question of law,

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our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

In this case, the offense at issue is PWID, the statute governing said

offense provides in relevant part, as follows.

§ 780-113. Prohibited acts; penalties

(a) The following acts and the causing thereof within

the Commonwealth are hereby prohibited:

…

(30) Except as authorized by this act, the

manufacture, delivery, or possession with intent to

manufacture or deliver, a controlled substance by a

person not registered under this act, or a practitioner

not registered or licensed by the appropriate State

board, or knowingly creating, delivering or

possessing with intent to deliver, a counterfeit

controlled substance.

…

35 P.S. § 780-113(a)(30). Regarding the intent to deliver element, this

Court has explained that the jury may infer said intent from the following

circumstances.

“To establish the offense of possession of a

controlled substance with intent to deliver, the

Commonwealth must prove beyond a reasonable

doubt that the defendant possessed a controlled

substance with the intent to deliver it.”

[Commonwealth v. Kirkland, 831 A.2d 607, 611

(Pa. Super. 2003), appeal denied, 847 A.2d 1280

(Pa. 2004)] (citing Commonwealth v. Conaway,

791 A.2d 359 (Pa. Super. 2002); Commonwealth

v. Aguado, 760 A.2d 1181 (Pa. Super. 2000)).

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The trier of fact may infer that the defendant

intended to deliver a controlled substance from

an examination of the facts and circumstances

surrounding the case. Factors to consider in

determining whether the drugs were possessed

with the intent to deliver include the particular

method of packaging, the form of the drug,

and the behavior of the defendant.

Kirkland, supra at 611. “Thus, possession with

intent to deliver can be inferred from the quantity of

the drugs possessed and other surrounding

circumstances, such as lack of paraphernalia for

consumption.” Commonwealth v. Torres, 617

A.2d 812, 814 (Pa. Super. 1992), appeal denied, 629

A.2d 1379 (Pa. 1993).

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (parallel

citations omitted).

In this case, the Commonwealth presented the testimony of Bucci,

who testified that he “basically [] bought [his] drugs from [Appellant].”

N.T., 6/11/15, at 25. Bucci described Appellant’s manner of conducting

business in the following terms.

Q. When you would purchase these drugs, did you

have any routine for getting them?

A. Yes.

Q. Can you please describe that to the members

of the jury?

A. Basically I would call, I would ask if [Appellant]

was good. He would [say] yes or no. If the

answer was yes, I would -- we would proceed

to make a time on how long it was going to

take me to get there. I would get there, at

which point I would call him again, and then he

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would come out and the transaction would be

made.

Q. Now, you just stated that you would call

[Appellant] and ask him if he was good. Can

you please describe to the members of the jury

what that means?

A. Basically did he have drugs on him. Cocaine.

Q. Would you always meet in the same location?

A. Yes.

Id. at 25-26. Bucci further testified that on the night of August 16, 2014,

he intended to purchase $20.00 worth of crack cocaine, and was in the

middle of making that transaction with Appellant when the police interrupted

them. Id. at 26, 28.

The Commonwealth also presented the testimony of Chief Goshert,

who testified as an expert in the field of “street-level drug trafficking.” Id.

at 63. Chief Goshert testified that in his expert opinion, the 5.76 grams of

crack cocaine recovered from Appellant’s person was possessed with the

intent to deliver and not for personal use. Id. at 66. Chief Goshert stated

that several factors led him to this conclusion. This included that the area

where Appellant and Bucci were found was “an area that is known for drug

trafficking.” Id. at 67. Also, Chief Goshert stated that the street value of

the 5.76 grams of crack cocaine was “about 450 to 570 dollars [sic] worth”

and it was “not an amount that would be consistent with someone who is

using crack cocaine.” Id. at 67-68. Chief Goshert also noted that Appellant

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and Bucci’s behavior of being “in the alley like that huddled up would be

consistent with a drug transaction, with transactional behavior.” Id. at 69.

Chief Goshert also noted that Appellant was not found with any drug

paraphernalia on his person, and that the packaging in which the crack

cocaine was found in was consistent with the sale of the substance, as

opposed to being for personal use. Id. at 72.

In light of the above evidence, we conclude Appellant is not entitled to

relief. The Commonwealth’s evidence showed that Appellant possessed 5.76

grams of crack cocaine, worth at least $450.00, and regularly sold the same

to Bucci. As Chief Goshert explained, the location and behavior of Bucci and

Appellant, combined with the value of the crack cocaine found, were all

consistent with an intent to deliver. Furthermore, it is undisputed that at the

time the police encountered Appellant, he did not possess any drug

paraphernalia on his person, which would have indicated that the drugs were

for personal consumption. Although, Appellant highlights factors that were

not present, these do not detract from the fact that Chief Goshert and

Bucci’s testimony presented facts from which a jury could conclude that

Appellant possessed the crack cocaine with an intent to deliver. See, e.g.,

Kirkland, supra; Torres, supra. Based on these considerations, we

conclude the Commonwealth produced sufficient evidence of intent to

sustain the PWID conviction. See Diamond, supra; Jones, supra.

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In his third issue, Appellant avers that the jury’s verdict was against

the weight of the evidence.4 We begin by noting our well-settled standard of

review. “A claim alleging the verdict was against the weight of the evidence

is addressed to the discretion of the trial court.” Commonwealth v.

Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation omitted). An

argument that the jury’s verdict was against the weight of the evidence

concedes that the evidence was sufficient to sustain the convictions.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our Supreme Court has

admonished that “[a] new trial should not be granted because of a mere

conflict in the testimony or because the judge on the same facts would have

arrived at a different conclusion.” Commonwealth v. Clay, 64 A.3d 1049,

1055 (Pa. 2013) (citation omitted). Instead, “the trial judge is to determine

that notwithstanding all the facts, certain facts are so clearly of greater

weight that to ignore them or to give them equal weight with all the facts is

to deny justice.” Id. (internal quotation marks and citation omitted). “[A]

new trial should be awarded when the jury’s verdict is so contrary to the

evidence as to shock one’s sense of justice ….” Id.

As an appellate court, it “is not [our role] to consider the underlying

question of whether the verdict is against the weight of the evidence.”

____________________________________________

4

We reject the trial court and the Commonwealth’s position that Appellant

has waived this issue for want of specificity.

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Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted),

cert. denied, Morales v. Pennsylvania, 135 S. Ct. 1548 (2015). An

argument that the jury’s verdict was against the weight of the evidence

remains “[o]ne of the least assailable reasons for granting … a new trial ….”

Id. (citation omitted). “Thus, only where the facts and inferences disclose a

palpable abuse of discretion will the denial of a motion for a new trial based

on the weight of the evidence be upset on appeal.” Id. (citation omitted;

emphasis in original).

In this case, Appellant avers the jury’s verdict was against the weight

of the evidence because, in his view, Bucci and Chief Goshert’s testimony

was unreliable. Appellant argues that Bucci’s testimony was unreliable

because of his crimen falsi, pending charges, and his admission that he lied

to the police. Appellant’s Brief at 40. Appellant also assails Bucci’s

testimony for its purported inconsistency with the evidence. Appellant

maintains that although Bucci stated that he purchased the $20.00 worth of

crack cocaine from Appellant, Bucci was not found with any drugs on him,

nor was Appellant found with any “denominations [of currency] … that would

account for twenty ($20) dollars.” Id. at 41. Appellant also avers that Chief

Goshert’s conclusions were unreliable because he testified that he did not

know whether Appellant had drug paraphernalia in his home 50 feet from

where he met Bucci. Id. Appellant also notes that Chief Goshert agreed

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that buying crack cocaine in a bulkier quantity was “safer and that the drugs

would not go bad so one could keep them for a long period of time.” Id.

The trial court concluded that Appellant was not entitled to relief based

on two propositions. First, it concluded the record contained “an abundance

of evidence [that] was presented to prove an intent to deliver the crack

cocaine.” Trial Court Opinion, 1/12/16, at 18. Second, the trial court’s

“[r]eview of the transcript does not reveal such [an] amount of

inconsistencies or a lack of credibility that it would shock the [trial c]ourt’s

sense of justice to learn that the jury resolved any credibility issues in favor

of the Commonwealth.” Id.

It is axiomatic that the jury is the ultimate finder of fact at trial.

[T]he veracity of a particular witness is a

question which must be answered in reliance on the

ordinary experiences of life, common knowledge of

the natural tendencies of human nature, and

observations of the character and demeanor of the

witness. As the phenomenon of lying is within the

ordinary capacity of jurors to assess, the question of

a witness’s credibility is reserved exclusively for the

jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).

Likewise, “[t]he trier 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.” Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.

Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).

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In this case, as the trial court pointed out, the jury was free to find

Bucci and Chief Goshert’s trial testimony credible, and resolve any

inconsistencies in said testimony in the Commonwealth’s favor. See

generally Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014)

(concluding the weight of the evidence claim could not prevail as “the jury

resolved the inconsistencies among the testimonies as it saw fit and reached

a verdict[]”), appeal denied, 102 A.3d 984 (Pa. 2014). The jury weighed

their testimony and ultimately concluded that Bucci and Chief Goshert were

credible. As an appellate court, we will not reweigh the evidence and

substitute our judgment for that of the fact-finder. Commonwealth v.

Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on

these considerations, we conclude the trial court did not commit a palpable

abuse of discretion in deciding the jury’s verdict was not against the weight

of the evidence. See Morales, supra.

We address Appellant’s remaining two issues together, in which

Appellant argues the trial court erred when it denied his motion to suppress.

We begin by noting our well-settled standard of review.

In addressing a challenge to a trial court’s

denial of a suppression motion, we are limited to

determining whether the factual findings are

supported by the record and whether the legal

conclusions drawn from those facts are correct.

Since the Commonwealth prevailed in the

suppression court, we may consider only the

evidence of the Commonwealth and so much of the

evidence for the defense as it remains

uncontradicted when read in the context of the

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record as a whole. Where the record supports the

factual findings of the trial court, we are bound by

those facts and may reverse only if the legal

conclusions drawn therefrom are in error.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014).5 In his first

issue, Appellant argues the police lacked reasonable suspicion to conduct an

investigative detention of Appellant. Appellant’s Brief at 19. The

Commonwealth counters that the interaction was a mere encounter, but

even if it was an investigative detention, the police had reasonable

suspicion. Commonwealth’s Brief at 14, 20.

The Fourth Amendment of the Federal

Constitution provides, “[t]he right of the

people to be secure in their persons, houses,

papers, and effects, against unreasonable

searches and seizures, shall not be violated ….”

U.S. Const. amend. IV. Likewise, Article I,

Section 8 of the Pennsylvania Constitution

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5

Our Supreme Court has clarified our scope of review when considering a

challenge to a trial court’s suppression ruling as it relates to “the extent of

the record that the appellate court consults when conducting that review.”

In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). The Court held that such review

is limited to the suppression hearing record, and “it is inappropriate to

consider trial evidence as a matter of course, because it is simply not part of

the suppression record, absent a finding that such evidence was unavailable

during the suppression hearing.” Id. at 1085. Because prior cases held that

a reviewing court could consider the trial record in addition to the

suppression record, our Supreme Court determined that the more limited

scope announced in In re L.J. would apply prospectively to cases where the

suppression hearing occurred after October 30, 2013. Id. at 1088-1089.

Instantly, the subject suppression hearing was held on January 26, 2015.

Accordingly, our scope of review is confined to the suppression hearing

record.

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states, “[t]he people shall be secure in their

persons, houses, papers and possessions from

unreasonable searches and seizures ….” Pa.

Const. Art. I, § 8.

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.

Super. 2014) (en banc), appeal denied, 117 A.3d

295 (Pa. 2015).

Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our

cases have recognized three levels of police-citizen interactions.

The first is a mere encounter, which requires no level

of suspicion at all. Commonwealth v. Daniel, 999

A.2d 590, 596 (Pa. Super. 2010). The second level

is an investigative detention, which must be

supported by reasonable suspicion. Id. at 596-597.

Finally, the third level is an arrest or custodial

detention, which must be supported by probable

cause. Id. at 597.

Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012). “In

evaluating the level of interaction, courts conduct an objective examination

of the totality of the surrounding circumstances.” Commonwealth v.

Lyles, 97 A.3d 298, 302 (Pa. 2014) (citation omitted).

The totality-of-the-circumstances test is ultimately

centered on whether the suspect has in some way

been restrained by physical force or show of coercive

authority. Under this test, no single factor controls

the ultimate conclusion as to whether a seizure

occurred—to guide the inquiry, the United States

Supreme Court and this Court have employed an

objective test entailing a determination of whether a

reasonable person would have felt free to leave or

otherwise terminate the encounter. What constitutes

a restraint on liberty prompting a person to conclude

that he is not free to leave will vary, not only with

the particular police conduct at issue, but also with

the setting in which the conduct occurs.

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Id. at 302-303.

In the case sub judice, the Commonwealth presented the testimony of

Officer Ishman, who testified that he was patrolling in an unmarked car with

P.O. Hamor. N.T., 1/26/15, at 16-17. Officer Ishman testified that at about

7:53 p.m., he and P.O. Hamor were driving by Wharton Alley, when he saw

Appellant. Id. at 17, 18. Officer Ishman observed that Appellant had

money in his left hand, and he was speaking to Bucci. Id. at 18. Officer

Ishman also observed Appellant “put something down the front of his pants.”

Id. at 19. Officer Ishman knew Appellant and identified him to P.O. Hamor.

The two officers got out of the car, which had neither its lights or sirens

activated. Id. at 19. As Officer Ishman got out of the car, Appellant walked

over to him. Id. Officer Ishman shook his hand, asked him how he was

doing that evening. Id. Appellant responded he was fine and had been

speaking to Bucci “about doing some work.” Id. Officer Ishman then turned

and went to speak to Bucci. Id. at 19-20.

P.O. Hamor testified at the suppression hearing that after Officer

Ishman and Appellant shook hands and exchanged greetings, he also

introduced himself to Appellant and asked him what he was doing. Id. at 8.

Appellant responded to P.O. Hamor that he was talking to Bucci about a job.

Id. P.O. Hamor described Appellant as acting nervously, with his hands

shaking. Id. at 9. P.O. Hamor gave Appellant his pen and notepad to write

down his name and his supervising probation officer. Id. P.O. Hamor

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explained that even though he already knew this information, he made the

request to illustrate Appellant’s nervousness. Id. P.O. Hamor asked

Appellant if he could search his person, to which Appellant said yes. Id. at

10. P.O. Hamor recovered over $200.00 in currency and a mobile phone.

Id. When P.O. Hamor was “shaking out his pants” as part of the search, “a

rubber band fell out on the ground.” Id. Officer Ishman pointed out that it

came out of Appellant’s pants. Id. P.O. Hamor asked Appellant if he “had

anything on him[]” to which Appellant said no. Id. P.O. Hamor asked

Appellant for his consent to search his pants. Id. Appellant unbuckled his

belt, and P.O. Hamor pulled Appellant’s pants away from his stomach. P.O.

Hamor observed the crack cocaine on top of Appellant’s genitals. Id.

Looking at the circumstances, we conclude that at the relevant times,

Appellant was subjected to a mere encounter, and not an investigative

detention. Both the United States Supreme Court and our Supreme Court

have held that a request for identification by police does not itself amount to

a seizure within the meaning of the Fourth Amendment. Hiibel v. Sixth

Judicial Dist. Ct. of Nev., 542 U.S. 177, 185 (2004); Commonwealth v.

Au, 42 A.3d 1002, 1007 (Pa. 2012). In addition, our Supreme Court has

instructed that an investigative detention arises when “an encounter

involving a request for identification could rise to a detention when coupled

with circumstances of restraint of liberty, physical force, show of authority,

or some level of coercion beyond the officer’s mere employment, conveying

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a demand for compliance or that there will be tangible consequences from a

refusal.” Lyles, supra at 304. Here, the officers were pulled up in an

unmarked vehicle without lights or sirens and were approached initially by

Appellant himself. The officers then exchanged greetings and shook hands

with Appellant and inquired into his name and activities. In our view, there

was no identifiable “restraint of liberty, physical force, show of authority, or

… coercion” that escalated this mere encounter into anything more than just

that. Id. Therefore, we conclude that Appellant was not subjected to a

seizure within the meaning of the Fourth Amendment.6 See Walls, supra.

In his second issue, Appellant claims the police lacked reasonable

suspicion to conduct a “probation search.” Id. at 28. However, the trial

court concluded that Appellant consented to the search at issue, as such, no

reasonable suspicion was required. Trial Court Opinion, 1/12/16, at 13.

Appellant does not challenge the trial court’s consent conclusion except to

say that “[t]he fact that Appellant allegedly consented to th[e] search is

irrelevant as the consent would have occurred after the illegal detention.”

____________________________________________

6

Although the Commonwealth argued in the trial court that Appellant was

subjected to a mere encounter, it appears the trial court’s overriding

conclusion was that the officers possessed reasonable suspicion. Trial Court

Opinion, 1/12/16, at 12. It is unclear whether the trial court was

affirmatively rejecting the Commonwealth’s position that this was a mere

encounter, or was assuming that even if it was a seizure, it was

constitutional. Nevertheless, as an appellate court, we “may affirm [the

lower court] for any reason, including such reasons not considered by the

lower court.” Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa.

Super. 2013) (citation omitted).

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Appellant’s Brief at 36. As we have explained above, Appellant’s Fourth

Amendment rights were not violated. Appellant does not raise any other

argument challenging the trial court’s consent conclusion; as a result, we

conclude this issue lacks merit. Therefore, as Appellant’s two suppression

issues fail, the trial court correctly denied Appellant’s motion to suppress.

See Scarborough, supra.

Based on the foregoing, we conclude all of Appellant’s issues are

devoid of merit. Accordingly, the trial court’s June 26, 2015 judgment of

sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2016

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