Opinion
J-S44039-16 No. 2149 EDA 2015
08-29-2016
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM BROWN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 15, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0013549-2008 BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
William Brown ("Brown") appeals from the judgment of sentence imposed after a jury convicted him of persons not to possess firearms. We affirm.
The trial court summarized the relevant facts underlying this appeal as follows:
This case arises from an incident occurring on June 10, 2008[,] in the 5800 block of West Arch Street in Philadelphia. At that time, Philadelphia Police Sergeant [Rodney] Linder ["Sergeant Linder"] was conducting surveillance on the aforesaid block when, according to [] Sergeant [Linder's] testimony, he saw an older black male (approximately 50 years old) walk up the street with money in his hand and approach [Brown,] who was sitting on the front steps of the porch of a residence located at 5839 W. Arch St[reet.] A marked narcotics unit patrol car happened to drive by at that moment[.] ... [Sergeant] Linder [saw Brown]
shake his head "no" as [Brown] pointed to the patrol car, at which point[] the older black male walked down the steps and away from the residence.Trial Court Opinion, 10/8/15, at 1-2 (footnote added, some capitalization omitted).
Thereafter, [Sergeant] Linder observed [Brown] roll a marijuana cigar[, commonly referred to as a "blunt."] ... [Sergeant Linder] then radioed for backup officers to move in. As two other [uniformed] police officers approached [Brown] on his porch, he [immediately] threw his cigar on the ground and attempted to enter the house. The officers pulled [Brown] away from the front door and one of the officers immediately felt a firearm on [Brown's] hip. The officer recovered a .40 caliber Smith and Wesson [handgun] from [Brown's person], as well as several small packets of marijuana and crack cocaine. Due to a prior conviction for possession with intent to distribute a controlled substance, [Brown] was prohibited from possessing said firearm.
Notably to this appeal, Sergeant Linder testified that the residence was located in a high-crime area known for drug sales and gun violence. N.T., 2/10/15, at 16.
Following Brown's arrest, the Commonwealth charged him with persons not to possess firearms, as well as other firearms- and drug-related offenses (collectively referred to as "the remaining offenses"). Brown filed a Motion to suppress, asserting that the drugs and firearm that the police seized were inadmissible as being the product of an unlawful, warrantless seizure and search. Following a suppression hearing, the trial court denied Brown's Motion. The matter proceeded to a jury trial, on the charge of persons not to possess firearms alone.
The remaining offenses were either dismissed or nolle prossed in the interim.
Relevant to the instant appeal, Brown's defense counsel made an oral Motion for a mistrial following an allegedly improper comment that the prosecutor made during her opening statement. The trial court denied the Motion at a sidebar, and thereafter issued a cautionary instruction to the jury. At the close of trial, the jury found Brown guilty of persons not to possess firearms.
Specifically, as we discuss below, the prosecutor stated to the jury, concerning the older black male who had stopped his approach to Brown upon seeing Brown shake his head and point at the police cruiser, as follows: "Sergeant Linder is going to tell you, he, in his experience, believed that to be an aborted drug sale." N.T., 2/11/15, at 4. For ease of reference, we will hereinafter refer to this comment as the "challenged opening remark."
On May 15, 2015, the trial court sentenced Brown to serve four to eight years in prison. Thereafter, Brown filed a post-sentence Motion seeking a new trial based upon the challenged opening remark, which the trial court denied.
Brown timely filed a Notice of Appeal. In response, the trial court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Brown timely filed a Concise Statement, after which the trial court issued a Pa.R.A.P. 1925(a) Opinion.
Brown now presents the following issues for our review:
A. Did the trial court err in denying [Brown's] Motion to suppress by finding that [the arresting] police officers had reasonable suspicion and did not need probable cause?Brief for Appellant at 3 (capitalization omitted).
B. Did the trial court err in denying [Brown's] Motion for a new trial as a remedy for unduly prejudicial statements made by the prosecution during her opening statement?
Brown first argues that the trial court erred by denying his Motion to suppress the handgun that police discovered on his person, as this evidence was seized during an unlawful investigative detention that was not supported by reasonable suspicion. See id. at 6-7. Brown asserts that
[Sergeant] Linder's initial observation of [Brown] refusing conversation with a passerby is non-criminal conduct and is consistent with benign behavior, even when the passing police vehicle is considered. [Sergeant] Linder's sole observation of [Brown] refilling a cigar with a substance that [Sergeant] Linder could neither see, touch, taste, nor smell is insufficient to establish reasonable suspicion. Without any means of determining the substance, [Sergeant] Linder's conclusion that [Brown] rolled a marijuana blunt amounts to nothing more than a hunch, especially considering that the substance in the cigar was never actually identified. ... While [Brown's] conduct was furtive, such furtive movements, even when accompanied with flight in an area with previous reports of criminal activity, do not establish an adequate basis for reasonable suspicion.Brief for Appellant at 7 (citation to record omitted). Additionally, Brown contends that the search and seizure was unlawful because he was located on the curtilage (i.e., front porch) of the residence at the time of the seizure, and the police therefore needed, but lacked, probable cause to arrest him. Id. at 7-8 (citing Commonwealth v. Gibbs , 981 A.2d 274, 279 (Pa. Super. 2009) (stating that the constitutional protections to be free from an unreasonable search or seizure in a private home extend to the curtilage of the home, which can include a front porch under certain circumstances where there is a reasonable expectation of privacy); see also Brief for Appellant at 8 (wherein Brown states that his "use of a fence or gate across a furnished, semi-enclosed porch indicated an intention to restrict the area from the general public.").
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.Commonwealth v. Perel , 107 A.3d 185, 188 (Pa. Super. 2014) (citation and ellipses omitted).
In Gibbs , this Court found neither legal precedent nor evidence in the record before it supporting the proposition that occupants of a home had a Fourth Amendment-based reasonable expectation of privacy in an empty, unenclosed front porch abutting the sidewalk and otherwise devoid of any attribute indicating an intent to deny access to the general public. Gibbs , 981 A.2d at 280.
In its Opinion, the trial court summarized the parties' respective arguments concerning the Motion to suppress, aptly set forth the relevant law and evidence of record, and determined that (1) under Gibbs , supra , the front porch of the residence in question did not constitute curtilage, and, therefore, probable cause was not necessary to support the search and seizure of Brown's person; and (2) the totality of the circumstances gave the police reasonable suspicion to stop Brown on the porch from fleeing inside the residence. See Trial Court Opinion, 10/8/15, at 2-13. The trial court's analysis is sound and supported by the record, and we thus adopt it herein by reference. See id.
Concerning Brown's challenge that the police lacked reasonable suspicion to conduct a lawful investigative detention, we are mindful of the following.
A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. This standard, less stringent than probable cause, is commonly known as reasonable suspicion. In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In making this determination, we must give due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.Commonwealth v. Ranson , 103 A.3d 73, 77 (Pa. Super. 2014) (citation omitted).
Here, the trial court ruled that Sergeant Linder possessed reasonable suspicion based upon his following observations: "(1) [Brown's] aborted drug sale with the other black male; (2) [Brown] rolling the cigar in a unique way[,] which the Sergeant recognized[,] from his years of experience[,] as the rolling of a marijuana ... blunt; and (3) [Brown] throwing the blunt to the ground when he saw the officers[,] and then trying to flee by entering the house." Trial Court Opinion, 10/8/15, at 3; see also N.T., 2/10/15, at 18-26 (Sergeant Linder's testimony); id. at 44 (testimony of one of the backup officers who placed Brown in custody that Brown, immediately upon noticing the uniformed officers approach the porch, threw the blunt, "stood up[,] and went for the door," trying to unlock it with a key). Moreover, Sergeant Linder testified that the residence was located in a known high-crime area. N.T., 2/10/15, at 16. We agree that the totality of these circumstances, in conjunction, was sufficient to establish reasonable suspicion. See Illinois v. Wardlow , 528 U.S. 119, 124-25 (2000) (holding that a police officer is justified in reasonably suspecting that an individual is involved in criminal activity when that individual (1) is present in a high crime area; and (2) engages in unprovoked flight after noticing the police); Commonwealth v. Miller , 876 A.2d 427, 430-31 (Pa. Super. 2005) (where the defendant was standing with a group other men on a street corner, and fled from police upon their approaching the group, holding that the defendant's presence in a high crime area, coupled with his flight, was alone sufficient to establish reasonable suspicion); Commonwealth v. Cottman , 764 A.2d 595, 599-600 (Pa. Super. 2000) (holding that the defendant's presence in a high crime area, his furtive movement to conceal an object when seen by police, and his flight established reasonable suspicion). Finally, Brown misses the point in attempting to minimize the suspicious nature of his behavior. See Commonwealth v. Davis , 102 A.3d 996, 1000 (Pa. Super. 2014) (stating that "reasonable suspicion does not require that the activity in question must be unquestionably criminal before an officer may investigate further.") (citation omitted). Accordingly, we discern no error of law or abuse of discretion by the trial court in denying Brown's Motion to suppress.
In Wardlow , a four-car police caravan was investigating drug activity in an area of Chicago known for heavy narcotics trafficking. Wardlow , 528 U.S. at 121. One of the officers observed the defendant holding an opaque bag. Id. The officers did not observe any specific indications that the defendant was in possession of contraband. See id. When the defendant saw the police, he immediately fled. Id. at 122. The police apprehended him and, during a pat-down search for weapons, recovered a gun. Id. The Supreme Court affirmed the denial of the defendant's motion to suppress, reversing the decisions to the contrary by the Illinois courts of appeal. Id. at 122-24; see also In re D.M. II , 781 A.2d 1161, 1165 n.2 (Pa. 2001) (applying Wardlow and declining to adopt greater constitutional rights under the Pennsylvania Constitution).
In his second issue, Brown contends that the trial court erred and deprived him of a fair and impartial trial when it denied his Motions for a mistrial and a new trial, made in response to the prosecutor's above-described challenged opening remark. Brief for Appellant at 8. According to Brown, "the Commonwealth's implication[,] made in conjunction with evidence presented to the jury about [Brown's] prior conviction for possession with intent to deliver[,] had the design and effect of inflaming the jury and depriving [Brown] of a fair and impartial trial." Id. (some capitalization omitted). Brown claims that the challenged opening remark caused him undue prejudice, and the trial court's giving the jury a mere curative instruction in response thereto was not sufficient to cure the prejudice. Id.
Our standard of review in assessing the denial of a mistrial is as follows:
The trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant or denial of a mistrial will not be overturned absent an abuse of discretion. A mistrial may be granted only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. Likewise, a mistrial is not necessary where cautionary instructions are adequate to overcome any possible prejudice.Commonwealth v. Johnson , 107 A.3d 52, 53 (Pa. 2014) (citation omitted); see also Commonwealth v. Judy , 978 A.2d 1015, 1019 (Pa. Super. 2009) (observing that a mistrial is an extreme remedy). In reviewing a challenge to a trial court's denial of a motion for a new trial based on alleged prosecutorial misconduct, our standard is abuse of discretion. Commonwealth v. Bryant , 67 A.3d 716, 728 (Pa. 2013).
In a criminal prosecution, "[t]he purpose of an opening statement is to apprise the jury how the case will develop, its background and what will be attempted to be proved; but it is not evidence." Commonwealth v. Parker , 919 A.2d 943, 950 (Pa. 2007). "[A] prosecutor's opening statements may refer to facts that she reasonably believes will be established at trial." Commonwealth v. Begley , 780 A.2d 605, 626 (Pa. 2001); see also Commonwealth v. Sneed , 45 A.3d 1096, 1110 (Pa. 2012) (stating that comments grounded upon the evidence, or reasonable inferences therefrom, are not objectionable). Additionally, the prosecution, as well as the defense, is afforded reasonable latitude in presenting opening arguments to the jury. Begley , 780 A.2d at 626.
In its Opinion, the trial court addressed Brown's claim, thoroughly set forth the relevant portions of the trial transcript, and determined that the court did not abuse its discretion in denying Brown's Motions for a mistrial and a new trial. See Trial Court Opinion, 10/8/15, at 13-19. Particularly, the court found that the prosecutor's challenged opening remark "was an appropriate summary of the evidence to be presented by the Commonwealth in its case-in-chief[,]" and did not unduly prejudice Brown or deprive him of a fair trial. Id. at 17, 18. We agree with the trial court's rationale and determination, and affirm on this basis in rejecting Brown's second issue, see id. at 13-19, with the following addendum. Even assuming, arguendo, that the challenged opening remark was prejudicial to Brown, the trial court gave the jury a curative instruction immediately after the prosecutor's opening statement, which, we conclude, was adequate to overcome any prejudice. See Johnson , supra (emphasizing that a mistrial is unnecessary where the trial court issues adequate cautionary instruction); Commonwealth v. Walter , 119 A.3d 255, 287 (Pa. 2015) (observing that a jury is presumed to have followed a court's curative instruction).
The curative instruction is set forth in the trial court's Opinion. See Trial Court Opinion, 10/8/15, at 15, n.8.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/29/2016
Image materials not available for display.