*1 petition. § law, may, the state of the PCRA Accord- 18 Pa.C.S.A. shield see petition us his times, subject ingly, one or does not show did admissible it v. what court found did not do. See PCRA exceptions. more Consequently, he does not convince us the Burns, (Pa.Super.2009). was petition wrong court’s view of the or notice of intent to proper giving After ultimate decision that court’s to dis- petition, may court dis- dismiss a PCRA petition Ap- miss the was erroneous. As if, a hearing miss without petition pellant critique does not trial court’s petition, and the there based the record on ruling, to demonstrate trial he fails fact, of no are issues material genuine no court’s was incorrect. decision by pro- served further purpose would be is not entitled petitioner and the ceedings, factual or Having legal not shown error 907(1). Pa.R.Crim.P. to PCRA relief. court, has Appellant failed to PCRA the court erred that persuade us that for reviewing PCRA Our standard such, Appellant entitled to relief. As is whether the court’s to determine оrders is affirm the court’s order. by the rulings are record legal free of error. Commonwealth Order affirmed.
Bennett, (Pa.Super.2011). to persuade
It is burden us appellant’s Judge BENDER concurs the result. court erred and that relief the PCRA is due. Id. brief, Appellant his presents
In his
issues, pro makes factual assertions and
ceeds some relat through principles ineffectiveness, the
ing failure to call rape provisions.
witnesses and the shield essentially attempts He us persuade Pennsylvania, of COMMONWEALTH and Appellant counsel was ineffective is Appellant entitled to relief. Aside from therefore question Appеllant’s of whether factual arguments, pres as he now assertions and GUZMAN, Appellee. Alexis appeal, ents them on would inef establish Superior Pennsylvania. of Court fectiveness, the fatal flaw in Appellant’s brief not demonstrate is it does his Oct. 2911. Submitted petition his claims to the PCRA articulated April Filed is, argues Appellant court. That to us as if we were the PCRA in the first telling us how the court
instance instead wrong petition. in its evaluation position that the court’s PCRA facts,
petition allegе clarify did those facts in a fashion proffer did not law,
sufficiently related to the so as to
present any entitling meritorious claims remedy. Appellant’s
Appellant to a brief
does the court’s not refute assessment *3 Salavantis,
Stefanie J. Assistant District Wilkes-Barre, Attorney, for Common- wealth, appellant. Fort, Yeager, Forty J. for
Joseph appel- lee. P.J., STEVENS,
BEFORE: MUSMANNO, J., GANTMAN, J. GANTMAN, BY J.: OPINION Pennsylvania ap- peals from the order entered Lu- Pleas, County zerne of Common Court Appellee’s suppress. motion to granting review, hold the court erred After suppressed when it evidence at issue (1) the preliminary because: interaction between and Officer Wetzel was (2) only; a mere encounter Officer Wet- subsequent to conduct a frisk zel’s decision weapons under cir- cumstances; Officer Wetzel lawful- ly seized the inside SUV as view. contraband found in Accord- suppressing ingly, we reverse the order for further pro- the evidence remand ceedings. procedural facts histo- white
The relevant substance was heroin because heroin ry packaged of this case are as follows. Officer Kirk is often in that manner. There City of the Hazelton Police was were also four bags suspected marijua- (Id.) crime area1 in Hazel- na. patrolling The substances were later con- marijuana. ton around 2:30 a.m. on March firmed as heroin Upon when he a dark make a discovery, saw Officer Wetzel’s Appellee re- objections turn from Chestnut Street onto Bennett newed his that he “[was] later, Street. About a minute Officer Wet- down for this” and claimed “it’s not mine”; zel a man walk noticed from the direction but he рlaced was nevertheless *4 where the had turned into an apart- SUV under arrest. A search of Appellee inci- ment on Bennett Street. Officer dent to produced Wetzel arrest two phones cell $1,014.80 watched the man enter the Offi- building. and in cash.
cer then Wetzel drove down Bennett charged Appellee Commonwealth Street, where he saw the with with possession with intent to deliver and on in a headlights private driveway. drug-related other Appellee offenses. pullеd patrol his car behind filed a motion suppress to the items seized and illuminated the car with his person from both his and the SUV well spotlight. As Officer as the statements he had made to Officer vehicle, he saw passen- a man in the Wetzel at the time of the incident. On ger’s seat turn and lean forward. Officer 12, 2010, November the court heard testi- was walking alongside the SUV mony from Officer Wetzel argument and suddenly when Appellee jumped out of the on the Ultimately, motion. the court vehicle, leаving the open setting door found Officer Wetzel lacked the necessary Appellee off the car alarm. fumbled his justification pull car behind the SUV pockets find the car key and deactivated approach and learned no the alarm. Officer Wetzel Appel- ordered new facts after Appellee jumped out of the keep lee to his hands out of his pockets, SUV, Terry to authorize a By frisk.2 or- Appellee but continued to reach inside his 24, 2011, der dated March the court sup- pants yelled, “I’m down for pressed Appellee’s statements and all this” and “It’s not mine.” After his initial physical product evidence as the non-compliance, Appellee obeyed the offi- illegal 8, April detention. On cer’s commands to calm stay down and timely Commonwealth filed a notice of At point, still. this Officer Wetzel hand- peal. patted cuffed him down but The Commonwealth raises one issue for found no weapons. Officer Wetzel walked оur review: open back to the passenger door of the DID THE SUPPRESSION COURT in, looked suspected and noticed her- ERR BY SUPPRESSING EVIDENCE bags marijuana oin and on the floor OBTAINED FOLLOWING sticking out from beneath the seat. Offi- SEARCHES OF APPELLEE AND cer Wetzel described the as small HIS VEHICLE? paper white folded-over wax bags anoth- (Commonwealth’s 4). Brief at (N.T. plastic bag. Suppression er Hear- 13-15). 11/12/10, ing, Based on his When the ap Commonwealth training, suspected peals evidence, an order suppressing murder, Ohio, shooting, 1. A Terry as well as severаl v. 392 U.S. 88 S.Ct. 20 robberies and home (1968). invasions had occurred L.Ed.2d 889 during preceding year. in that area between citizens “‘Interaction’ evidence only the on review may consider officers, and sei under search along with witnesses from the defendant’s law, requires different is varied and zure re- evidence the Commonwealth’s depending upon justification levels of v. uncontroverted. mains and whether or of the interaction nature Brown, 996 A.2d Pa. is detained.” Common not the citizen re- (2010). of review is “Our standаrd DeHart, 633, 636 wealth the record establishing whether stricted of inter The three levels (Pa.Super.2000). court’s factual suppression supports encounter, action are mere however, de novo we maintain findings; detention, “A detention. Id. and custodial court’s review over any formal or infor can be mere encounter Id. conclusions.” and a between an officer mal interaction with the disagrees The Commonwealth citizen, inquiry by normally but will ruling on several court’s of a citizen.” Commonwealth the officer ar- Initially, the Commonwealth grounds. (Pa.Su Coleman, *5 between interaction preliminary the gues not car A mere encounter does per.2011). Appellee nothing was and Officer Wetzel stop to or re ry any compulsion official encounter, re- mere which than a more result, police, and as a does spond to The justification. no Common- quired suspi by any level supported need to be of sim- Officer Wetzel’s act wealth asserts Hudson, A.2d v. 995 ciоn. Commonwealth was up to the SUV consistent ply walking 1253, See also (Pa.Super.2010). 1256-57 n with nature of a mere encoun- the informal Reid, 1, 26, Pa. 811 v. 571 Commonwealth ordinary citizens. police and ter between denied, 530, (2002), cert. 540 U.S. A.2d 545 the avers Of- Additionally, Commonwealth 131, 850, 92 124 157 L.Ed.2d S.Ct. in a justified conducting was ficer Wetzel 491, Royer, v. 460 U.S. (quoting Florida based on down search pat 229, 1319, 1324, 75 L.Ed.2d 103 S.Ct. Appel- Officer presented facts to Wetzel: (1983)) of (stating: “Law enforcement 236 high out of an crime jumped lee SUV the Fourth Amend ficers do not violate while pockets area and reached into his an individual by merely approaching ment screaming, “I’m not simultaneously by public place, in another on the street or created a for this.” These facts down willing to answer some asking him if he is safety that concern for officer reasonable if to him questions, by putting questions of a the limited intrusion justified listen, byor offer willing is to the person Regarding found down search. prosecution in in a criminal ing evidence front seat of the the Common- questions”). voluntary his answers such justified was argues contrast, wealth car investigative detention In view plain those items under the seizing in re compulsion stop ries an official Jones, door was Because the SUV doctrine. 874 A.2d v. spond. Commonwealth lawfully present was 108, 116 is open, (Pa.Super.2005). The detention scene, immediately the items were at the it must be temporary, but suspected creating to Officer Wetzel as facts a apparent and articulable specific suspect contends is suspicion The contraband. Commonwealth reasonable activity. in criminal Common engaged view doctrine allowed Cottman, 595, 598 and seize v. 764 A.2d Wetzel to reach inside wealth reasons, The for reasonable (Pa.Super.2000). the Com- test drugs. For these inquiry one: “Our objective in is an suspicion the court erred monwealth concludes the officer’s action a dual one—whether agree. the evidence. We is suppressing
693
Strickler,
47, 58-59,
whether wealth
563
justified
inceрtion,
v.
Pa.
757
(2000).
reasonably
scope to the A.2d
single
it
related in
No
factor
determination,
should control
this
which
interfer
circumstances
courts must examine the
place. Regarding
totality
the first
ence in
reaching
circumstances when
a
may,
conclusion
stop, a
short
as to whether a seizure
arrest,
occurred. Id.
conduct an
detention
a
based
suspicion,
if he has
reasonable
present case,
In the
Officer Wet
facts,
upon specific
articulable
patrol
zel
was in his
car
a
crime
criminality is afoot.”
Commonwealth
area in Hazelton when he
dark
observed a
(Pa.Su
Stevenson,
SUV make a
hand turn on Bennett
denied,
appeal
591 Pa.
per.2006),
Street. The SUV
with its head
(2007) (quoting
A.2d 846
lights
on in
driveway,
and Officer
Zhahir,
561 Pa.
man walk
Wetzel saw a
from the direction
(2000)).
The assessment of reason
into an apartment building.
suspicion,
to the
applicable
able
“like that
pulled
patrol
car into a
cause,
probable
requires
determination of
parking spot behind the SUV and illumi
totality
an evaluation of the
of the circum nated his
spotlight.
spotlight allowed
stances, with a
showing
lesser
needed to Officer
to see a man in
passen
reasonable
terms
suspicion
demonstrate
ger
appeared
seat
fidgeting
who
quantity
reliability.”
of both
or content and
moving
in the seat.
around
When Officer
*6
Finally,
Id. at
“To if determine an interaction occurred when Officer be- the level investigative rises to of an deten approached hind the and the vehicle. ie., tion, a Terry stop, the court must The court noted Officer Wetzel not had seen, observed, all the examine circumstances and deter or any received indication police mine whether action have of activity would criminal when he Instead, person made a reasonable believe he was SUV. court concluded the go to subject not free and was to the mere of an one turning incident from Jones, orders.” swpra. guide officer’s To parking street to another and with analysis, headlights this crucial the United States Su in a driveway on not did preme objective has devised an test suspicion necessary Court create reasonable to (See whether, in entailing justify investigative view of all surround an detention. circumstances, ing person Suppression a reasonable Court Opinion, April filed 5). would believe was free to leave. Unit The court’s is conclusion here Mendenhall, 544, 554, ed v. misguided States 446 U.S. because initial interaction limited, informal, L.Ed.2d 497 S.Ct. and not thus did (1980). circumstances, “In evaluating supported by any need to be justi- level of whether, is simply the focus directed fication. In vehi- parking toward behind a physical already stopped ap- means of force or show of authori cle that was and it, ty, citizen-subject’s display movement has in proaching Wetzel did not way some been type physical restrained.” Common force or au- show of becomes The issue therefore weapons. to the level necessary to rise thority req possessed Officer Wetzel A reasonable whether detention.3 investigative the detention support to suspicion would uisite situation Appellee’s person both or un- actions by police Appellee’s down. restrained necessarily feel of the fact leave, light the SUV especially inside and outside able to to speak to yet had Wetzel was frisk. While Officer stop that Officer Wetzel Ap- any commands. Appellee him give or he saw Appellee approaching the of the jumped out pellee spontaneously turning in the front seat twisting and no force or had shown something moving SUV. if he were support the court’s any command issued jumped out Appellee then under the seat. instantly oc- had a seizure conclusion “I’m not yelled, of the SUV McClease, curred. See Commonwealth Simul “It’s not mine.” for this” and down (Pa.Super.2000) 824-25 innocence, Appel- cries of taneous with his Mendenhall, supra) (providing (quoting into his and reached appeared lee nervous creating conduct examples of request despite Officer Wetzel’s pockets, “threatening presence of detention, such as hands where the keep Appellee officers, weapon by aof display several point, At this Offi could see them. of the officer, touching physical some person with a behav was faced cer Wetzel citizen, the use of lan- or person night, erratically, late at ing that com- indicating or tone of voice guage area, plunge pur who continued crime request might be the officer’s pliancе with The record pockets. into his posefully compelled”). to rea gave actions rise Appellee’s shows Instead, thus far actions the officer’s safety jus for officer sonable concern of a mere en- the hallmarks carried all to detain Wetzel’s decision tified Officer justifi- needed no counter. down briefly perform pat the SUV park cation to behind Mack, search. See Commonwealth officer, it; he is entitled proach as a *7 “If, 587, (stating: (Pa.Super.2008) 590 A.2d on the street ordinary citizens approach investigatory of a valid during the course Reid, See su- questions. a few and ask and sus observes unusual stop, an officer a Wetzel demonstrated pra. Had Officer the individu part conduct on the picious in authority of force or greater show reasonably believe leads him to al which analysis might be our proaching and dan may be armed suspect that the different, at the presented but the facts pat-down a may the officеr conduct gerous, support a find- hearing do not weap garments for suspect’s outer police detention. ing of force or official Parker, ons”). See also Offi- compulsion from there was no Given 311, (Pa.Super.2008), appeal A.2d 315 957 from Appellee jumped when cer Wetzel denied, 755, 571 Pa. 966 A.2d 600 consti- Wetzel’s actions specific possessed officer (stating police required no a mere encounter that tuted suspect might articulable facts Hudson, supra. justifiсation. See suspect was dangerous because armed if was of car as down in seat leaning mere began as a The interaction something); Common to retrieve trying encounter, investiga but it escalated to 279, Wilson, 284-85 A.2d 927 held wealth tive detention when police articulated (holding (Pa.Super.2007) for pat a down Appellee and conducted freedom of move- restrict its in” the SUV or Nothing that Officer of record demonstrates or exit. way to “box ment patrol car in
695
sрecific
creating
safety
only
facts
risk of officer
needed
to stand outside the car and
justifying Terry
suspect
frisk where
drugs
look inside. The
in question were
in
engaging
suspicious gestures
transparent
was
and located in a
package on the
movements,
floor,
placing
and also
his hands in-
sticking out from
pas-
beneath the
seat;
pockets);
side coat
senger
Commonwealth v.
and Officer Wetzel immedi-
Mesa,
147,
643,
Pa.Super.
683
ately recognized
A.2d
the contents as illegal
(1996) (concluding
provided requi-
narcotics. Officer Wetzel also had a lawful
support
site
belief that
right
facts
defendant
of access to
baggies
under Penn-
might
dangerous
sylvania’s
be armed and
where po-
because,
limited auto exception
“moving
car,
lice observed defendant
prior
approaching
around a
Officer Wet-
seat).
great deal” in
passenger
Officer zel did not have advance knowledge that
necessary
Wetzel took
Appellee’s
mеasures to deter-
SUV was
involved
a crime.
mine
Collins,
whether
was armed and to See Commonwealth v.
950 A.2d
1041,
physical
neutralize the threat of
harm.
1045 n. 4 (Pa.Super.2008) (citing
Stevenson, supra
(noting
McCree,
See
at 772
com-
Commonwealth v.
592 Pa.
give
249-51,
(2007) (Ea-
mon sense concerns must
preference
924 A.2d
628-29
safety
kin, J.,
to officer
when circumstances indi-
plurality)) (stating officer has law-
may
cate defendant
have or be reaching
ful access to
object
retrieve
from interior
weapon). Consequently,
down of vehicle without warrant when officer
proper,
and the
court had no
knowledge
advance
that vehicle
illegal
erred when it concluded an
deten-
crime);
involved
Commonwealth v.
cash,
tion had occurred. Because the
cell Turner,
94 (Pa.Super.2009),
phone,
Appellee’s
statements4 were
denied,
appeal
Pa.
admitted INC., VICES, Retail, Inc., Dominion SUV, weap- no drugs, officer saw no Group, the Manchester LLC ons, no there were indication Pamela Post Never- weapons. Id. at 29. drugs and/or theless, apprоached Officer Guzman vehicle, When Guzman exited the SUV. Id. WATER AND PITTSBURGH SEWER alarm, Wetzel its and deactivated Utility AUTHORITY Line vehicle, Guzman to ordered the back of the Security, LLC. officer handcuffed Guzman. Id. where the though Even a search pat-down at 33. Utility Appeal Security, of: Line LLC. activity, revealed no evidence of criminal Inc., again approached Services, Products and Dominion inside, Retail, Inc., Dominion driveway, in and looked Manchester private Group, Post, Appel LLC Pamela discovering seat Id. contraband under the lants 34. agree Majority’s cannot I also with the within
conclusion the contraband falls Pittsburgh Water And Sewer of the plain the ambit view doctrine. Offi- Authority Utility Line initial contact Guzman cer Wetzel’s with Security, LLC. encounter,” be considered a “mere cannot Pennsylvania. Commonwealth Court of officer parked when the his marked behind the drive- vehicle on Briefs Sept. Submitted 2011. illuminating Fur- way, spotlight. it with a Decided Oct. ther, person a reasonable would not have to leave felt free when Officer Wetzel Thus,
proached vehicle. when Officer he did not a legal
view the contraband inside from reasons, point. I
vantage For these would ruling,
uphold court’s findings are the record
and its conclusions are sound.