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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOSHUA BAVIN, Appellant No. 1416 WDA 2014

Appeal from the Judgment of Sentence Entered February 7, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001914-2013

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 19, 2017

Appellant, Joshua Bavin, appeals from the judgment of sentence of an aggregate term of 5 to 15 years’ incarceration, followed by 4 years’ probation, imposed after he was convicted of multiple counts of drug-related offenses. Appellant challenges the trial court’s denial of his pretrial motion to suppress, as well as the legality of a mandatory-minimum sentence

imposed in his case. After careful review, we affirm Appellant’s convictions, but vacate his judgment of sentence and remand for resentencing.

In January of 2013, Appellant was arrested and charged with two counts of possession with intent to deliver a controlled substance, 35 P.S. §

780-113(a)(30); two counts of possession of a controlled substance, 35 P.S.

§ 780-113(a)(16); and one count of criminal conspiracy, 18 Pa.C.S. § 903.

Prior to trial, Appellant filed a motion to suppress evidence, and a hearing

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was conducted on November 13, 2013. At the close of that proceeding, the trial court denied Appellant’s motion. His case proceeded to a jury trial, where Appellant was convicted of the above-stated offenses. He was sentenced to the aggregate term stated, supra, on February 7, 2014. Appellant filed a timely post-sentence motion, which the court denied. He then filed a timely notice of appeal and, following a lengthy delay in obtaining transcripts, he also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion in May of 2016. Herein, Appellant raises two issues for our review, which we have reordered for ease of disposition: 1. Whether the [t]rial [c]ourt erred when it denied [Appellant’s] motion to suppress when [Appellant] was seized without sufficient reasonable suspicion or probable cause? 2. Whether the [t]rial [c]ourt erred in sentencing [Appellant] to a mandatory minimum sentence under 18 Pa.C.S.A. § 7508(a)(7)(iii) when such mandatory sentences are unconstitutional under Alleyne v. United States, - U.S. -, 133 S.Ct. 151 (2013); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)[;] and Commonwealth v. Fennell, 101 A.3d 13 (Pa. Super. 2014)? Appellant’s Brief at 4. Our standard of reviewing the denial of a suppression motion is as follows: In reviewing an order from a suppression court, we consider the Commonwealth’s evidence, and only so much of the defendant’s evidence as remains uncontradicted. We accept the suppression court’s factual findings which are supported by the evidence and reverse only when the court draws erroneous conclusions from those facts.

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Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998). Before delving into Appellant’s specific suppression claims, we first summarize the pertinent evidence presented at the suppression hearing, and the legal conclusions reached by the trial court based on that evidence. Detective Ryan Martin testified first for the Commonwealth. He stated that at approximately 9:40 p.m. on January 22, 2013, a known and reliable confidential informant (hereinafter, “CI”) called him with information about “a short white male with short hair” who had been “traveling in the Northside area of the City of Pittsburgh distributing large amounts of heroin.” N.T., 11/13/13, at 13.1 Detective Martin testified that he had received other complaints about “large quantities of narcotics being distributed on the Northside area of the City of Pittsburgh” within the two weeks preceding the CI’s call. Id. The CI told him that the short, white male with short hair was going to be traveling with a white female to the Giant Eagle on Rodi Road in Penn Hills, which is just outside the City of Pittsburgh, for the purpose of selling heroin to a white female. Id. at 14, 15. The CI explained that the white male would be driving a “light blue Chevy” and was going to meet the white, female buyer at the “front ____________________________________________

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entrance of the Giant Eagle parking lot.” Id. at 15. That specific shopping plaza is a high crime area, with “[t]he sale and use of narcotics” being “the most prevalent type of crime in that area.” Id. at 57. Based on the CI’s information, Detective Martin and another detective set up surveillance at the Giant Eagle parking lot. Id. at 16-17. Once there, the detective received another call from the CI, who stated that the white male in the light blue Chevrolet would be arriving at the Giant Eagle “[i]n approximately five minutes.” Id. at 17. Approximately five minutes later, Detective Martin “observed a light blue Chevy Cobalt pull into the Giant Eagle parking lot and park in front of the front entrance of the Giant Eagle.” Id. Inside the car, Detective Martin could see “a white male driver with short hair,” and “a white female passenger.” Id. At that point, Detective Martin “radioed the assisting detectives to approach the vehicle.” Id. At the suppression hearing, Detective Martin identified Appellant as the driver of the Chevrolet vehicle. Id. at 18. Detective Brian Burgunder testified that he was one of the officers who approached Appellant’s vehicle.^[2] He could not specifically recall if the ____________________________________________

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officers advanced toward the vehicle with their guns drawn, but he testified that doing so would have been “protocol” in this type of situation. Id. at 46. Detective Burgunder stated that all the officers who approached the vehicle had police badges clearly displayed, and he “was verbally telling [Appellant they were] Pittsburgh Police….” Id. at 47. Detective Burgunder was the officer who first spoke to Appellant. The detective testified that he had a “brief” conversation with Appellant “in normal voice levels” and his gun was not drawn at that point. Id. at 47, 48.3 He testified that the conversation with Appellant went as follows: [Detective Burgunder]: I explained to [Appellant] that we believed he was in the area to conduct a narcotics transaction involving heroin and prescription narcotic pills. At that point[, Appellant] said that he didn’t have anything on his person. I subsequently asked him if he would consent to a search of his person and the vehicle, and he immediately complied. Id. at 47. The female passenger in Appellant’s vehicle also consented to a search of her person. Id. at 53. Ultimately, the search revealed 100 Oxycodone pills in Appellant’s pocket, as well as “eight bricks of heroin plus 48 bags, [a] spoon, and a rubber tourniquet” in the female passenger’s pants. Id. ____________________________________________

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Based on this evidence, trial court concluded that Appellant was subjected to an investigative detention that was supported by reasonable suspicion. Id. at 69. The court emphasized that there was “a known reliable informant” and “the information [was] corroborated by the observations of the officers….” Id. at 69. The court also noted that the location of the detention was known to be a “high drug trafficking area.” Id. at 70. Therefore, the court concluded that the stop of Appellant was legal and, because he ultimately consented to the search of his person, that search was legal, as well. See Trial Court Opinion (TCO), 5/3/16, at 8. On appeal, Appellant contends that his interaction with police constituted “a custodial detention for which law enforcement lacked sufficient probable cause to justify the seizure of his person.” Appellant’s Brief at 22 (emphasis omitted). Alternatively, Appellant claims that even if he was only detained for investigation, officers did not have reasonable suspicion to validate that detention. Finally, Appellant argues that his consent to search his person “was a product of the illegal detention and was not independently and voluntarily given.” Id. at 25 (emphasis omitted). In assessing Appellant’s claims, we are mindful that, Pennsylvania case law recognizes three categories of interaction between police officers and citizens. The first is a mere encounter, which need not be supported by any level of suspicion. The second is an investigative detention, which must be supported by reasonable suspicion. This interaction subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. The third category, a custodial detention, must be supported by probable cause. The police have probable

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cause where the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.

Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012) (internal citations and quotation marks omitted).

Here, we initially agree with the trial court that Appellant was subjected to an investigative detention, rather than an arrest. Our Supreme

Court has declared that, [t]he factors typically considered in determining whether a detention is investigative or custodial are:

the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of detention; the show, threat or use of force; and, the investigative methods used to confirm or dispel suspicions.

In Interest of S.J., 713 A.2d 45, 47 (Pa. 1998) (quoting Commonwealth v. Gommer, 445 Pa.Super. 571, 581, 665 A.2d 1269, 1274 (1995)

(citations omitted)).

Here, the basis for the detention was a tip from a reliable CI that a

man matching Appellant’s description was travelling to a specific location, with a white female passenger, in a specific color and make of vehicle, at a specific time, and for the purpose of selling heroin. Appellant was ultimately detained in a public parking lot of a grocery store. During that detention, he was not transported anywhere. Additionally, the evidence indicated that

Appellant’s detention was brief in duration. For instance, Detective

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Burgunder testified that he approached Appellant’s vehicle, immediately asked Appellant to exit the car, and informed Appellant that he was suspected of being in the area to sell heroin and prescription pills. Appellant then denied that he possessed any narcotics and consented to a search of his person. These facts support that the detective “diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly….” Commonwealth v. Douglass, 539 A.2d 412, 421 (Pa. Super. 1988) (discussing the factors to consider in determining if a detention is “too long in duration to be justified as an investigative stop”) (citations omitted). In regard to the factor of whether the officers showed, threatened or used force, we recognize that seven officers approached Appellant, likely with their weapons drawn, and Detective Burgunder immediately ordered him to exit his vehicle. Certainly, these acts constitute a showing of force. However, this Court concluded in Commonwealth v. Johnson, 849 A.2d 1236 (Pa. Super. 2004), that five officers’ approaching Johnson’s vehicle with their guns at their sides still constituted an investigative detention, not an arrest. Id. at 1238. In reaching this decision, we stressed that the officers did not have their guns pointed at Johnson. Id. at 1239.4 In this ____________________________________________

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case, even if we presume that the seven officers who approached Appellant’s vehicle had their weapons drawn as ‘protocol,’ there was no evidence suggesting that they had their weapons pointed at Appellant. Additionally, both our Supreme Court and this Court have recognized that ordering a person out of his or her vehicle is indicative of a detention, but does not necessarily escalate the detention to an arrest. See Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002) (listing cases that “have applied [the ‘investigative detention’] standard in the context of motor vehicle stops during which police have ordered a motorist or his passengers to disembark”). Here, Detective Burgunder testified that his weapon was not drawn when he directed Appellant to exit the vehicle, and he did not threaten Appellant in any manner in ordering him to do so. N.T. at 48. Moreover, there was no evidence that Appellant was forcibly removed from the car; rather, the detective testified that Appellant “immediately complied” with the order to get out. Id. at 51. There was also no evidence suggesting that Appellant was subjected to force after he stepped out of the car. For instance, Appellant was not placed in handcuffs, put into the back of a police car, ordered to lie on the ground, or directed to place his hands on his head or on the hood of the vehicle. In sum, the factors outlined in S.J., and this Court’s decision in Johnson, support the trial court’s decision that Appellant was subjected to an investigative detention, rather than to a custodial detention.

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Consequently, we must next assess whether there was reasonable suspicion to support that detention. See Caban, 60 A.3d at 127. Again, Johnson is instructive, as the facts of that decision closely mirror those of the present case. In Johnson, [o]n the date of the arrest, October 2, 2002, Officer DeFrancesco received information from a confidential informant (C.I.) that a young, stocky, African–American male would be delivering marijuana in a blue Oldsmobile on the 6700 block of Market Street in Upper Darby, PA. Later, Officer DeFrancesco received more information from the C.I. stating that the time of delivery would be between 6:00 and 10:00 p.m. The information was received shortly before 6:00 p.m., and five officers immediately set up a surveillance. A man fitting the description in a car fitting the description arrived in the location. The officers approached the car, with their guns drawn but at their sides. Johnson, 849 A.2d at 1237. Ultimately, the Johnson panel held that, based on the information given by a C.I. who had proven to be reliable in the past, when a man fitting the description arrived at the appointed location in a car similar to the one that had been described by the C.I., the police had reasonable suspicion that criminal activity was afoot. The officers acted properly by approaching the car to investigate. Under these facts, they were permitted to stop [Johnson] for a brief period of detention. Id.5 ____________________________________________