Opinion
J-S57031-17 No. 2693 EDA 2016
11-17-2017
COMMONWEALTH OF PENNSYLVANIA v. BYRON MITCHELL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 13, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0000253-2014; CP-51-CR-0000254-2014; CP-51-CR-0000255-2014 BEFORE: PANELLA, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Byron Mitchell ("Mitchell") appeals from the judgment of sentence imposed following his conviction of one count each of rape, involuntary deviate sexual intercourse, robbery, sexual assault, attempted kidnapping, carrying a firearm on a public street in Philadelphia, two counts each of possession of an instrument of crime, kidnapping and possession of a firearm prohibited, and three counts each of unlawful restraint and false imprisonment. See 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3701(a)(1)(i), 3124.1, 901(a), 6108, 907(a), 2901(a)(1), 6105(a)(1), 2902(a)(1), 2903(a). We affirm.
Mitchell was charged on three separate dockets, which were consolidated for trial.
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt herein for the purpose of this appeal. See Trial Court Opinion, 1/4/17, at 1-3 (unnumbered).
In its Opinion, the trial court incorrectly stated the crimes and counts of which Mitchell was convicted. The convictions and counts thereof, as stated previously in this Memorandum, are correct.
On appeal, Mitchell raises the following issues for our review:
I. Is [Mitchell] entitled to an arrest of judgment with respect to his convictions for attempted kidnapping, unlawful restraint, and false imprisonment[,] since the evidence is insufficient to sustain the verdicts of guilt[,] as the Commonwealth failed to sustain its burden of proving [Mitchell's] guilt beyond a reasonable doubt?
II. Even if the evidence [was] sufficient to support [Mitchell's] convictions on all charges[, were] the guilty verdicts [] against the weight of the evidence[?]
III. Did the trial court commit prejudicial error by granting the Commonwealth's Motion to consolidate the three cases for a single trial[?]
IV. [Whether Mitchell] is entitled to a new trial because the suppression court improperly denied [Mitchell's] Motion to suppress the evidence obtained during his arrest and detention by the police because the police lacked probable cause to initially detain [Mitchell?]
Brief for Appellant at 11 (capitalization omitted, issues renumbered for ease of disposition).1. [Whether Mitchell's] seizure by police following the traffic stop was unreasonable and not supported by probable cause[?]
In his first issue, Mitchell contends that the evidence was insufficient to support his conviction of kidnapping and attempted kidnapping because the alleged victims had not been moved a "substantial distance" nor confined for a "substantial period of time." Id. at 19-21.
In its Opinion, the trial court determined that Mitchell's challenge to the sufficiency of the evidence was waived due to his failure to articulate in his Concise Statement which elements of which crimes were not sufficiently proven by the Commonwealth. See Trial Court Opinion, 1/4/17, at 6-7 (unnumbered). Given that Mitchell was convicted of numerous crimes against multiple victims, we agree with the reasoning of the trial court, as stated in its Opinion, and affirm the trial court's determination that Mitchell's challenge to the sufficiency of the evidence is waived. See id.
In his Concise Statement, Mitchell stated his sufficiency claim as follows: "When considering all of the evidence in the light most favorable to the Commonwealth, there was insufficient [sic] to prove the allegations beyond a reasonable doubt." Concise Statement, 10/26/16, at 2 (unnumbered).
In his second issue, Mitchell challenges the weight of the evidence supporting his convictions. Brief for Appellant at 25-26.
Mitchell did not raise any challenge to the weight of the evidence in his Concise Statement. We therefore affirm the trial court's determination that Mitchell's challenge to the weight of the evidence is waived. See Pa.R.A.P. 1925(b)(3)(vii) (providing that "issues not included in the Statement ... are waived."); see also Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that, if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived).
In his third issue, Mitchell contends that the trial court erred by consolidating his three criminal cases for trial. Brief for Appellant at 23. Mitchell asserts that he was prejudiced by the consolidation, as it caused unnecessary juror confusion. Id. According to Mitchell, while the separate attacks bore many similarities, those similarities also prejudiced him. Id. Mitchell argues that, at a minimum, he should have received a separate trial for the rape case because the other two cases did not involve any sexual assault or rape. Id. at 24.
In its Opinion, the trial court addressed Mitchell's third issue, set forth the relevant law, and concluded that the issue lacked merit. See Trial Court Opinion, 1/4/17, at 4-6 (unnumbered). We discern no abuse of discretion by the trial court, and affirm on this basis as to Mitchell's third issue. See id.
In his fourth issue, Mitchell contends that the suppression court improperly denied his Motion to suppress evidence discovered by police during Mitchell's initial arrest and search. Brief for Appellant at 26. Mitchell claims that, at the time the police pulled him out of his vehicle, they had no reasonable articulable facts to support the contention that criminal activity was afoot, nor probable cause to arrest him for alleged rape. Id. at 28. Mitchell argues that, although the initial investigatory detention was arguably proper, it evolved into a custodial detention when the responding officers handcuffed him and transported him to the police station. Id. at 29. Mitchell contends that the police, by their actions and testimony, acknowledge that probable cause did not exist. Id. On this basis, Mitchell asserts that the .38 caliber rounds, bandana and the DNA swab are inadmissible as "fruits of the poisonous tree." Id. Mitchell claims that his consent to the DNA swab is presumed to be involuntary because it was a product of an illegal detention. Id. at 30.
In cases involving a review of the denial of a defendant's suppression motion, we are subject to the following standard of review:
[An appellate court's] 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, [the appellate court] is bound by [those] 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 [] plenary review.Commonwealth v. Jones , 121 A.3d 524, 526-527 (Pa. Super. 2015) (quoting Commonwealth v. Jones , 988 A.2d 649, 654 (Pa. 2010) (internal citations and quotation marks omitted)).
In evaluating an interaction between law enforcement and other citizens, Pennsylvania courts look to whether the interaction is a mere encounter, an investigatory detention, or a custodial detention. See Commonwealth v. Downey , 39 A.3d 401, 405 (Pa. Super. 2012). A mere encounter does not require police to have any level of suspicion that the person is engaged in wrongdoing. Id. Such an encounter does not compel the party to stop or respond. Id.
An investigative detention subjects an individual to a stop and a short period of detention. Id. With regard to an investigatory detention,
a police officer may, short of an arrest, conduct an investigative detention if he has a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot. The fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the intrusion warrant a man of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.Commonwealth v. Shabezz , 129 A.3d 529, 534 (Pa. Super. 2015) (citation omitted, internal brackets omitted).
A custodial detention must be supported by probable cause, which exists if there are facts and circumstances within the police officer's knowledge that would warrant a person of reasonable caution to believe an offense has been committed. Commonwealth v. Myers , 728 A.2d 960, 962 (Pa. Super. 1999).
An arrest must also be supported by probable cause, which exists
when the facts and circumstances within the police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. Probable cause justifying a warrantless arrest is determined by the totality of the circumstances.Commonwealth v. Williams , 941 A.2d 14, 27 (Pa. Super. 2008) (internal citations and quotation marks omitted).
Probable cause is governed by an objective standard and "exists when criminality is one reasonable inference—not necessarily even the most likely inference." Commonwealth v. Spieler , 887 A.2d 1271, 1275 (Pa. Super. 2005); see also Commonwealth v. Dennis , 612 A.2d 1014, 1016 (Pa. Super. 1992) (holding that "we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act."); Commonwealth v. Kendrick , 490 A.2d 923, 927 (Pa. Super. 1985) (holding that probable cause "does not demand any showing that such a belief be correct or more likely true than false.").
Here, the following evidence was presented at the suppression hearing. Detective James Owens ("Detective Owens") of the Special Investigations Unit testified that, after the third attack had occurred on October 15, 2013, the investigation was assigned to his unit. Id. at 51. He further testified that two of the victims met with a sketch artist on October 15, 2013, following the third attack, to create the composite sketches. Id. at 47-49. Detective Owens contacted the Fugitive Squad of the Marshal's Task Force and the Major Crimes Home Violence Unit, and asked what manpower their units could provide to assist in the search for the male suspect. Id. at 52. These units diverted their officers to help the Special Investigations Unit patrol the Juniata area on the morning of October 16, 2013. Id. According to Detective Owens, all of the units participating in the search had been provided with copies of the composite sketches of the male suspect. Id. at 54.
Officer Jose Silva ("Officer Silva") testified that, on the morning of October 16, 2013, he and his partner, Officer Cortes, were on duty, in uniform and in a marked police car, patrolling the Juniata area of Philadelphia. N.T., 4/5/16, at 4, 17. At that time, they were aware of a description of a male suspect wanted in connection with the three attacks that had occurred between October 10-15, 2016, in the Juniata area. Id. at 5. The male suspect had been described as "thin build, black male, five-six, five-eight possibly[,] dark-complected, wearing Adidas-type jacket or jacket with stripes across arms, possible bandana." Id. Additionally, during the rollcall prior to their shift, Officers Silva and Cortes had received composite sketches of the male suspect, which depicted the additional distinctive feature of "gappy teeth." Id. at 5-6. At approximately 9:00 a.m., less than one hour after seeing the composite sketches, Officers Silva and Cortes saw a van parked with two occupants: a female on the driver's side; and a male on the passenger's side. Id. at 8, 26. As the officers looked at the male passenger, he acted in a peculiar way by trying to "scrunch down" to get out of the officers' view. Id. at 8. The officers decided to investigate the vehicle. Id.
The record does not contain any reference to Officer Cortes's first name.
After parking behind the vehicle, Officer Cortes approached the passenger side of the vehicle, opened the door and either asked Mitchell to step out of the vehicle or pulled him out. Id. at 10, 22. Mitchell somewhat fit the description of the male that police were searching for, due to "the thinness, the build, the height, [and] the dark complexion of him." Id. at 12. Mitchell was also wearing a jacket with white stripes. Id. at 9. Officer Cortes conducted a pat-down and held Mitchell by the belt. Id. at 10-11. Officers Silva and Cortes observed Mitchell "looking back and forth sideways[,]" as if he was "trying to think of an escape." Id. at 11. Officers Silva and Cortes, afraid that Mitchell would try to run away, placed him in the back seat of their patrol car. Id. The officers asked Mitchell to smile, and observed that he had gap in his teeth. Id. at 12-13, 68. Mitchell initially told the officers that he did not have any identification, and gave them a name which they were unable to trace. Id. at 12. When confronted with this information, Mitchell produced identification. Id.
Meanwhile, Detective Owens had been alerted that a patrol car had stopped a van, and he and his partner proceeded to the scene. Id. at 53. Detective Owens testified that each of the three attacks had occurred within a few blocks of the location where the van was parked. Id. When Detective Owens arrived at the scene, Mitchell was outside the van, speaking to the officers. Id. at 54. According to Detective Owens, Mitchell was wearing a blue jacket with red and white stripes. Id. at 59. Based on the description provided by the victims, Mitchell's physical appearance, and his proximity to the locations where the assaults had occurred, Detective Owens directed the officers to bring Mitchell to the 24th District police station for questioning. Id. at 55.
Mitchell was taken to the police station, where officers found two .38 caliber rounds and a blue and white bandana in his possession. Id. at 57. Although Mitchell had told Detective Owens that he was not on probation or parole, upon investigation, Detective Owens discovered that Mitchell was on parole, and contacted Mitchell's parole officer, Sean Finnegan ("Finnegan"). Id. at 56-57, 59. Finnegan thereafter stopped at Mitchell's residence before proceeding to the police station, where Finnegan confronted Mitchell regarding the two rounds of ammunition that had been found in Mitchell's possession. Id. at 68-69. Mitchell admitted to Finnegan that the rounds were for a firearm, that Mitchell had used illegal drugs, and had left town without permission, all in violation of his parole. Id. at 69.
At the conclusion of the suppression hearing, the suppression court made the following factual findings:
THE COURT:
Officer Silva from the 24th [D]istrict testified [that] on [October 16, 2013,] he was out in the early morning, or [8:00] a.m., [9:00] a.m. in uniform, in a marked car, and happened upon a van in which [Mitchell] was riding. As [Officer Silva] looked towards the van that morning, gone over the sketch[es], which [are Exhibits] C-1 and C-2, of an individual wanted for assaults in the neighborhood, as he looked towards the van, he could see the male was slouching down, seeming to avoid police.
The car is stopped and [Mitchell] is questioned. At some point [Mitchell] is in the back of the [police] car .... [Mitchell] fitted the description of the sketches. The officers asked him to smile, at which time he showed a gap between his teeth, which apparently was one of the descriptions given by one of the victims.
With this, this was someone who matched the description of an individual responsible for three violent assaults. They were speaking to him and detained him. He was brought to the police 24th district and [] Finnegan, [Mitchell's] parole officer, sat down with him.
At that time, [Finnegan] had the information that [Mitchell] had two rounds of amm[unition], which is a violation of his parole. He was asked about the amm[unition]. And according to [Finnegan], he did not warn [Mitchell] of his Miranda warnings because of his position as a parole officer. [Mitchell] told [Finnegan] it was ammunition for a firearm. [Finnegan] asked [Mitchell] if he had left the area. [Mitchell] said ["]yes["], he [had] left the area. [Finnegan a]sked [Mitchell] if he [had] used [illegal] drugs, [and Mitchell told Finnegan that] he had used [illegal] drugs ....
[Finnegan], I believe[,] had been contacted [by police]. [Finnegan] went to [Mitchell's] house before [Finnegan] interviewed [Mitchell].
Is that my understanding?N.T., 4/5/16, at 67-70 (footnote added). Upon these findings, the suppression court denied Mitchell's Motion to suppress.
[THE PROSECUTOR]:
Yes.
THE COURT:
[Finnegan] was at [Mitchell's] house before and observed, and he was allowed to go into that house in his position as a parole officer. [Finnegan] understood that [Mitchell] was being detained, and he observed a jacket with stripes on the sleeves.
[Finnegan] eventually filed a detainer, had [Mitchell] held, which would have happened whether or not there were charges or no charges. [Mitchell] was going to be held for parole violations.
Detective Owens testified that he was part of a team that was on the lookout for the individual involved with the three serious assaults on October 10, 2013, October 10, 2013, and October 15, 2013, and because of the information, he had a good idea of what the suspect would look like, having seen the sketches, [and] the location where [Mitchell] was stopped.
[Detective Owens] spoke to [Mitchell]. [Mitchell,] at that time[,] told [Detective Owens] that [Mitchell] was not on probation or parole, which of course was untrue.
Miranda v. Arizona , 384 U.S. 436 (1966).
Notably, Officer Silva testified that, when Mitchell was placed in the back of the patrol car, he was not handcuffed. See N.T., 4/5/16, at 11, 25. However, Detective Owens testified as to his belief that Mitchell was handcuffed when in the back of the patrol car. See id. at 61. Because we may only consider so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole, we may not consider this evidence. See Jones , supra.
Although Mitchell contends on appeal that the suppression court erred by denying his request to suppress a DNA swab, Mitchell's Motion to suppress failed to make any reference to the DNA swab, nor was any testimony offered, or argument made, at the suppression hearing regarding the DNA swab. Thus, Mitchell failed to preserve any claim regarding the DNA swab for our review. See Pa.R.A.P. 302 (providing that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal."). --------
Based on our independent review, we conclude that suppression court's factual findings are supported by the record. See id.; see also id. at 4-25, 46-61. Officer Silva provided specific and articulable facts to support his reasonable suspicion that criminality activity was afoot; namely, that Mitchell had attempted to "scrunch down" in the van so as to avoid detection by police. Therefore, the initial investigatory detention conducted by Officers Silva and Cortes was legal. Further, probable cause supporting the custodial detention and subsequent arrest was established, as Mitchell fit the physical description of the male suspect that police were looking for (i.e., gender, ethnicity, height, build, complexion, and "gappy teeth"), his clothing matched that of the male suspect (a jacket with white stripes), he had attempted to avoid detection by police, and was spotted by police just blocks from where the incidents had occurred, and on the day after the last attack had occurred. See Commonwealth v. Powers , 398 A.2d 1013, 1015 (Pa. 1979) (holding that the police had probable cause to arrest three men who were in the general area and fit the description of suspects in an assault that had occurred 15 minutes before); Commonwealth v. Riley , 425 A.2d 813, 817 (Pa. Super. 1981) (holding that, even if the "arrest" occurred at the stationhouse, the arresting officer was entitled to rely upon the comparison of appellant to the composite sketch); Commonwealth v. Lybrand , 416 A.2d 555, 559 (Pa. Super. 1979) (holding that suppression of a statement the defendant made in custody was properly denied because the defendant matched the composite drawing of the suspect in a murder which had occurred the day before, and because of the circumstances under which the drawing was obtained, there was probable cause for the arrest for murder); Commonwealth v. Sabb , 409 A.2d 437, 441 (Pa. Super. 1979) (holding that there was probable cause to arrest the defendant a half-hour after the crime occurred, and three and one-half blocks from the scene, based on the victim's general description). Moreover, Mitchell was subject to arrest because he was in violation of his parole due to his possession of ammunition and admissions that he had left town and used illegal drugs. Therefore, based on the totality of the circumstances, we conclude that Mitchell's detention and subsequent arrest were legal, and the suppression court did not err in denying Mitchell's Motion to suppress. Accordingly, we affirm as to Mitchell's final issue.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date:11/17/2017
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