J-S69041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID LEWIS GLADDEN,

                            Appellant                 No. 252 MDA 2016


            Appeal from the Judgment of Sentence January 29, 2016
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0006077-2014


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 02, 2016

        Appellant, David Lewis Gladden, appeals from the judgment of

sentence entered on January 29, 2016, following his non-jury conviction of

two counts of possession with intent to deliver (PWID) 1 and one count of

possession of drug paraphernalia.2 On appeal, Appellant challenges the trial

court’s denial of his motion to suppress. For the reasons discuss below, we

affirm.3

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(32).
3
 Although we affirm, our reasoning is different from that of the trial court.
See Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1 (Pa. Super.
(Footnote Continued Next Page)
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      We take the underlying facts and procedural history in this matter

from the trial court’s March 8, 2016 memorandum, the notes of testimony of

the suppression hearing, and our independent review of the certified record.

            Detective Nicholas Licata of the Harrisburg Police
      Department was working surveillance on October 14, 2014.
      Specifically, he was watching a building on the 300 block of
      South 14th Street in the city from a building directly across the
      street.    [Detective] Licata was working with the Attorney
      General’s Office and was aware that the building across the
      street was a drug buying location.

             At about 8:15 p.m. he saw a tan-colored Buick approach
      the residence and park right in front of the building he was in.
      The driver [later identified as Appellant] was wearing a blue
      collared shirt. A black male [later identified as Zac Evans] with a
      hood[ed] sweatshirt walked off of the porch of the residence
      being watched and entered the vehicle. He appeared to be just
      talking to the driver and was in the car for about a minute.
      [Evans] exited the vehicle, returned to the porch and made []
      hand[-]to[-]hand exchange[s] with two men on the porch.
      [Detective] Licata did not see any plastic baggies, drug
      paraphernalia or currency change hands. [Evans] then went
      back to the car and got in. [Detective] Licata saw [Evans] take
      something out of his pocket, [Appellant] looked at it and then
      they drove away. [Detective] Licata also testified that he rarely
      sees the actual items in hand[-]to[-]hand exchanges.

            [Detective] Licata got the license plate and then called the
      Street Crimes Unit which was nearby to possibly stop the car as
      he believed it was involved in drug activity. This was based on
      his knowledge and experience with regard to hand[-]to[-]hand
      drug exchanges. The car was ultimately stopped.


                       _______________________
(Footnote Continued)

1992) (“It is well-settled that an appellate court may affirm the decision of
the trial court if there is any basis on the record to support the trial court’s
action. This is so even if we rely upon a different basis in our decision to
affirm.”) (citations omitted).



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             On October 14, 2014, Officer Anthony Fiore of the
     Harrisburg Police Department was working the Street Crimes
     Unit with the unit supervisor, Sergeant [Milo] Hooper. After
     receiving [Detective] Licata’s call, they initiated a traffic stop on
     the car identified by license plate number as the car was silver,
     not tan as [Detective] Licata had believed. They were on the
     1600 block of Chestnut Street when they activated their lights.
     It’s a one way road and the car stopped immediately in the
     middle of the road. [Officer] Fiore approached the passenger
     side and [Sergeant] Hooper approached the driver side. They
     asked them for identification and informed them they were
     initiating a traffic stop based on suspected drug activity. They
     discovered that [Evans] was a fugitive from state parole out of
     York County and he was immediately taken into custody without
     incident.

            [Officer] Fiore’s vehicle is not equipped with computers so
     when they run an individual’s name they call back to [c]ounty
     dispatch to run the name. Dispatch then informs them of the
     license status.      He was told that Appellant’s license was
     suspended. As Appellant had a suspended license, he would not
     be permitted to drive the vehicle away.          According to the
     certified PennDOT records, Appellant was in possession of a
     probationary license as of the date of the incident, though
     according to Fiore’s testimony, he only was told that the license
     was suspended and had no information regarding a probationary
     license.

           [Officer] Fiore determined that Appellant’s grandmother
     owned the vehicle, but it is not department policy to call the
     owner unless there are exigent circumstances. An example of a
     circumstance where they would call the owner, is if the car was
     stopped due to a medical emergency and they had no reason to
     hold the car. The usual policy is to tow the vehicle. The
     department also has an inventory policy when towing a vehicle,
     that is, they check the vehicle to make sure that any valuables
     are accounted for so that there aren’t any issues with missing
     items later. Prior to making the decision to tow the vehicle,
     [Officer] Fiore did not see anything in plain view.

           As they were going to tow the vehicle, an inventory search
     was done on the entire vehicle pursuant to policy. During this
     search they located two sandwich bags of marijuana in the
     center console and two smaller bags of suspected MDMA or

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      cocaine. Field tests showed positives for marijuana and MDMA.
      [Officer Fiore] also found a digital scale and wallet.

            The wallet contained Appellant’s Social Security card and
      ID card. [Officer] Fiore also searched the trunk where he found
      three bags of marijuana. Upon finding the drugs, Appellant was
      arrested and searched incident to the arrest; they found
      $450[.00] and a cell phone. . . .

(Trial Court Opinion, 3/08/16, at 1-4) (record citations omitted).

      On January 26, 2015, the Commonwealth filed a criminal information

charging Appellant with two counts of PWID and one count of possession of

drug paraphernalia.   (See Criminal Information, 1/26/15, at unnumbered

page 1).   On June 1, 2015, Appellant filed an omnibus pre-trial motion to

suppress, arguing that the police lacked probable cause for the motor

vehicle stop and that the inventory search of the car was illegal.      (See

Omnibus Pre-Trial Motion, 6/01/15, at unnumbered pages 4-5).              A

suppression hearing took place on June 17, 2015, at the close of which, the

trial court denied Appellant’s motion to suppress.     (See N.T. Suppression

Hearing, 6/17/15, at 49-51).

      On January 8, 2016, Appellant filed a motion to vacate the denial of

the motion to suppress based upon the original trial judge’s subsequent

recusal and the reassignment of the case to a new judge. (See Motion to

Vacate Prior Ruling, 1/08/16, at unnumbered pages 1-2). On January 11,

2016, the trial court granted the motion to vacate. On January 29, 2016, a

second suppression hearing took place immediately prior to trial. The trial

court denied the motion to suppress.        (See N.T. Suppression Hearing,

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1/29/16, at 78). Following a bench trial, the trial court convicted Appellant

of all charges. (See id. at 83). By agreement of the parties, the trial court

immediately moved to sentencing and sentenced Appellant to a term of

incarceration of not less than one and one-half nor more than three years, to

be served consecutively to any other sentence Appellant was then serving

and a concurrent term of five years of probation. (See id. at 89-90).

      On February 4, 2016, Appellant filed a timely notice of appeal.            On

February 8, 2016, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal.             See Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on February 24, 2016. See

id. On March 8, 2016, the trial court issued a memorandum. See Pa.R.A.P.

1925(a).

      On appeal, Appellant raises the following issue for our review:

            I. Did not the [trial] court err in denying [Appellant’s]
      motion to suppress physical evidence seized following a traffic
      stop?

(Appellant’s   Brief,   at    4)   (unnecessary   capitalization   and   underlining

omitted).

      On appeal, Appellant challenges the denial of his motion to suppress.

(See id. at 10-16). When we review a ruling on a motion to suppress, “[w]e

must determine whether the record supports the suppression court’s factual

findings and the legitimacy of the inferences and legal conclusions drawn

from these findings.”        Commonwealth v. Holton, 906 A.2d 1246, 1249


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(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation

omitted). Because the suppression court in the instant matter found for the

prosecution, we will consider only the testimony of the prosecution’s

witnesses and any uncontradicted evidence supplied by Appellant. See id.

If the evidence supports the suppression court’s factual findings, we can

reverse only if there is a mistake in the legal conclusions drawn by the

suppression court. See id.

        Appellant first argues that the police lacked probable cause to stop his

vehicle. (See Appellant’s Brief, at 10-14). In response, the Commonwealth

avers that reasonable suspicion, not probable cause, is the proper standard

of review. (See Commonwealth’s Brief, at 6-10). For the reasons discussed

below, we agree with the Commonwealth and find that the police possessed

sufficient reasonable suspicion of criminal activity to justify the motor vehicle

stop.

        Initially, we note that this Court has held that there are three levels of

interaction between citizens and police officers:      (1) mere encounter, (2)

investigative detention, and (3) custodial detention. See Commonwealth

v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005). Thus, we have stated:

              A mere encounter can be any formal or informal
        interaction between an officer and a citizen, but will normally be
        an inquiry by the officer of a citizen. The hallmark of this
        interaction is that it carries no official compulsion to stop or
        respond.

              In contrast, an investigative detention, by implication,
        carries an official compulsion to stop and respond, but the

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      detention is temporary, unless it results in the formation of
      probable cause for arrest, and does not possess the coercive
      conditions consistent with a formal arrest. Since this interaction
      has elements of official compulsion it requires reasonable
      suspicion of unlawful activity. In further contrast, a custodial
      detention occurs when the nature, duration and conditions of an
      investigative detention become so coercive as to be, practically
      speaking, the functional equivalent of an arrest.

Id. (citation omitted).

      A police officer is authorized to make a brief investigative stop of a

motor vehicle if he has “objective facts creating a reasonable suspicion that

the   detained   motorist   is   presently   involved   in   criminal   activity.”

Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa. Super. 2010) (en

banc), appeal denied, 25 A.3d 327 (Pa. 2011) (quoting Commonwealth v.

Murray, 331 A.2d 414, 418 (Pa. 1975)).            To determine if reasonable

suspicion exists, the court must look to the totality of the circumstances. In

discussing reasonable suspicion, this Court has stated that:

             Reasonable suspicion is a less stringent standard than
      probable cause necessary to effectuate a warrantless arrest, and
      depends on the information possessed by police and its degree
      of reliability in the totality of the circumstances. In order to
      justify the seizure, a police officer must be able to point to
      specific and articulable facts leading him to suspect criminal
      activity is afoot. In assessing the totality of the
      circumstances, courts must also afford due weight to the
      specific, reasonable inferences drawn from the facts in
      light of the officer’s experience and acknowledge that
      innocent facts, when considered collectively, may permit
      the investigative detention.

Commonwealth v. Downey, 39 A.3d 401, 406 (Pa. Super. 2012), appeal

denied, 50 A.3d 124 (Pa. 2012) (citation omitted) (emphasis added); see


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also Commonwealth v. Brown, 23 A.3d 544, 551 (Pa. Super. 2011) (en

banc) (combination of experienced police officer and suspicious, although

not illegal behavior of appellant, was sufficient to justify automobile stop);

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006) (court

must give due weight to “specific reasonable inferences [the police officer] is

entitled to draw from the facts in light of his experience. . . . even a

combination of innocent facts, when taken together may warrant further

investigation by the police officer.”) (citation and quotation marks omitted);

Commonwealth v. Hayes, 898 A.2d 1089, 1094 (Pa. Super. 2006)

(“[a]lthough Appellee’s behavior may also have been consistent with

innocent behavior, that alone does not make the investigatory detention

unlawful.”) (citation omitted).

        Here, Detective Licata, an experienced police officer, was conducting

surveillance, at night, in a high-crime area. (See N.T. Suppression Hearing,

1/29/16, at 4-6, 9). He was watching a house on the 300 block of South

14th Street, Harrisburg, that was a known drug house.         (See id. at 6).

Detective Licata observed a Buick, driven by Appellant, approach; it parked

directly across the street from the house (and in front of the building that

Detective Licata was in). (See id.). Zac Evans, who was on the porch of

the house, walked over to the car and briefly spoke with Appellant.      (See

id.).    He then walked back to the porch and engaged in hand-to-hand

exchanges with two other men sitting on the porch. (See id. at 6-7). Evans


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walked back to the car, took something out of his pocket and handed it to

Appellant.   (See id. at 7).   Evans got into the car and he and Appellant

drove away. (See id.). Detective Licata did not see the items exchanged

but testified that he rarely sees the actual items in hand-to-hand exchanges,

however, based upon his experience he believed that Evans was getting

money from the men to give to Appellant with the intent of buying drugs.

(See id. at 9-10, 16).    These observations provided sufficient reasonable

suspicion to justify the stop of Appellant’s vehicle. See Commonwealth v.

Clemens, 66 A.3d 373, 380 (Pa. Super. 2013) (finding sufficient reasonable

suspicion to justify investigative detention where experienced police officers

patrolling in high-crime area observed hand-to-hand transaction between

two men); see also Commonwealth v. Thompson, 985 A.2d 928, 936

(Pa. 2009) (holding there was probable cause to stop, search, and seize

defendant based upon experienced police officer’s observation of hand-to-

hand transaction at night in high-crime area).      Thus, because there was

reasonable suspicion justifying the stop of Appellant’s car, the trial court did

not err in denying the motion to suppress.      See Downey, supra at 406;

Fezcko, supra at 1288.




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       Appellant next claims that the retention, impound, and search4 of the

vehicle was illegal. (See Appellant’s Brief, at 14-16). Specifically, Appellant

argues that he did possess a valid driver’s license at the time of the stop and

thus could have driven the vehicle. (See id. at 15-16). We disagree.

       The procedure regarding immobilization of a vehicle is found at 75 Pa.

C.S.A. § 6309.2, which states in pertinent part:

       (a) General rule.—Subject to subsection (d), the following shall
       apply:

                                       *       *    *

              (2) If a motor vehicle or combination for which there
              is no valid registration or for which the registration is
              suspended, as verified by an appropriate law
              enforcement officer, is operated on a highway or
              trafficway    of   this    Commonwealth,      the    law
              enforcement officer shall immobilize the motor
              vehicle or combination or, in the interest of public
              safety, direct that the vehicle be towed and stored
              by the appropriate towing and storing agent
              pursuant to subsection (c), and the appropriate
              judicial authority shall be so notified.

       (b) Procedure upon immobilization.—

                                       *       *    *

              (2) When a vehicle is immobilized pursuant to
              subsection (a)(2), the owner of the vehicle may
____________________________________________


4
   We note that Appellant does not make a separate challenge to the
constitutionality of the inventory search. (See Appellant’s Brief, at 15-16).
The only basis for his challenge to the lawfulness of the search was that the
police did not have the authority to impound the vehicle because he
allegedly possessed a valid probationary license at the time of the stop.
(See id.).



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           appear before the appropriate judicial authority
           within 24 hours from the time the vehicle was
           immobilized. The appropriate judicial authority may
           issue a certificate of release upon:

                 (i) the furnishing of proof of registration
                 and financial responsibility by the owner
                 of the vehicle; and

                 (ii) receipt of evidence that the operator
                 of the vehicle has complied with the
                 pertinent provisions of Title 42 and this
                 title.

75 Pa.C.S.A. § 6309.2(a)(2), (b)(2)(i) and (ii) (emphasis added).

     Here, Appellant does not dispute that the vehicle was parked in such a

manner as to represent a threat to public safety. (See Appellant’s Brief, at

15-16).   Rather, he argues that the officers knew or should have known

that he possessed a valid probationary license at the time of the stop. (See

id.). We disagree.

     Our review of the record demonstrates that, at the suppression

hearing, Police Officer Anthony Fiore and Sergeant Milo Hooper of the

Harrisburg Police Department stopped the car.        (See N.T. Suppression

Hearing, 1/29/16, at 17-19). Appellant gave his name to the officers and

Officer Fiore contacted dispatch, who informed him that Appellant’s license

was suspended.    (See id. at 22-23).   Officer Fiore explained that his car

does not have a computer and, therefore, his is completely reliant on

dispatch for information regarding license status. (See id. at 23). Appellant

was not the owner of the vehicle.       (See id. at 24).       While Appellant


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produced certified PennDOT records at the suppression hearing that showed

that Appellant may have possessed a probationary driver’s license at the

time of the incident,5 (see id. at 41-43), Appellant does not highlight any

information in the record that demonstrates that the police were aware of it,

or that Appellant communicated this information to them.          Essentially,

Appellant’s argument is that the police should have possessed a computer in

their car and, if they had, they would have been able to run Appellant’s

name and ascertain that he had a valid probationary license.             (See

Appellant’s Brief, at 15). Appellant does not point to, and we are unaware

of, any case that has suppressed evidence on the basis that a police car was

not fitted with the most up-to-date technology or has faulted the police for

relying on information from county dispatch that later proved to be incorrect.

       Here, the Commonwealth demonstrated that the vehicle was a threat

to public safety. Sergeant Hooper testified that the vehicle stopped in a very

narrow area and between Appellant’s automobile and the vehicles parked on

the street, a car could not pass it. (See N.T. Suppression Hearing, 6/17/15




____________________________________________


5
  It is somewhat unclear that the probationary license allowed Appellant to
drive the vehicle in question. The records produced by Appellant appear to
apply to a different car, thus it is questionable if Appellant was allowed to
drive the vehicle. (See N.T. Suppression Hearing, 1/29/16, at 43-44).




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at 38).6 He testified that there was no legal parking spot to pull the car into

and that this was creating a traffic problem.       (See id. at 38-39, 45).

Further, the evidence supports the suppression court’s factual finding that

the only information possessed by the police was that Appellant’s license

was suspended. (See Trial Ct. Op., at 5). Thus, the trial court did not err in

finding that the police had the authority to retain and tow the vehicle. 7 See

Commonwealth v. Palmer, — A.3d —, 2016 WL 4191819 at *4 (Pa.

Super. filed Aug. 4, 2016) (finding police properly impounded and towed

vehicle where it was parked illegally and none of occupants had valid driver’s

license); Cf. Commonwealth v. Langanella, 83 A.3d 94, 102 (Pa. 2013)

(holding police lacked evidence to impound vehicle where it was undamaged,

legally parked, and not creating safety hazard).

       Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

       Judgment of sentence affirmed.




____________________________________________


6
  Sergeant Hooper was unavailable to testify at the second suppression
hearing and the parties agreed to admit his testimony from the initial
suppression hearing. (See N.T. Suppression Hearing, 1/29/16, at 56).
7
 Since Appellant’s contention that the police illegally searched the vehicle is
dependent upon his claim that it was illegally impounded, we will not further
address the issue.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2016




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