J-S37016-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

ALLEN R. DANIELY

Appellant No. 1200 EDA 2012

Appeal from the Judgment of Sentence July 23, 2009 In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001875-2008

BEFORE: GANTMAN, J., MUNDY, J., and COLVILLE, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 16, 2013

Appellant, Allen R. Daniely, appeals from the July 23, 2009 aggregate

judgment of sentence of life imprisonment without the possibility of parole,

imposed after he was found guilty of first-degree murder, robbery, firearms

not to be carried without a license, and possessing instruments of crime

(PIC).1 After careful review, we affirm the judgment of sentence.2

The trial court summarized the relevant facts of this case as follows.

On November 17, 2007, at approximately 8:30 p.m., Darryl Jones stopped by the home of his

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502, 3701, 6106, and 907, respectively.

2 We note that the Commonwealth has not filed a brief in this matter.

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friend, Richard Murphy, on Wister Street in North

Philadelphia. After being at the house for a few minutes, Mr. Jones stepped outside to take a call on

his cell phone. He exited through Mr. Murphy’s backyard, which faced the intersection of Rodney

Street and Homer Street. Shortly after Mr. Jones went outside, Mr. Murphy heard two gunshots and

walked outside to investigate. He saw Mr. Jones lying in the middle of the street.

Philadelphia Police Officer John Erickson was

patrolling nearby when he heard a gunshot. Officer Erickson drove around the block, looking for signs of

gunfire, and then received a police radio transmission that a man was lying in the intersection

of Rodney and Homer Streets, approximately two

blocks away. Officer Erickson arrived at the location and found Darryl Jones lying facedown (sic) and

suffering from a single gunshot wound to the back. Mr. Jones was transported to Einstein Medical

Center, where he was pronounced dead. His cell phone was missing.

Two fired cartridge casings from a .40 caliber

handgun were recovered from the scene of the murder. Police obtained Mr. Jones’s cell phone

records and began tracking the phone’s signal, as it had been left on and was being used to place and

receive calls. On November 20, 2009, with the assistance of the FBI, Philadelphia Police traced the

cell phone’s signal to a house at the intersection of

Germantown Avenue and Washington Lane. After police saw [Appellant] exit the house with a cell

phone in his hand, they stopped [Appellant] and patted him down. While patting him down, police

found a .40 caliber handgun in a holster underneath his pants. After verifying that the cell phone

belonged to the murder victim, police arrested [Appellant].

Once in custody, [Appellant] gave an

inculpatory statement to police, in which he admitted playing a role in the robbery and murder of Mr.

Jones. Detectives also interviewed two girlfriends of

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[Appellant], Ebony Sawyer and Phylicia Johnson.

Both women told the police that they had seen [Appellant] with a gun in the timeframe surrounding

the murder, and that [Appellant] had called them numerous times from Mr. Jones’s phone. Ms.

Sawyer also told police that [Appellant] told her he had committed the murder, demonstrating with his

gun how he shot Mr. Jones in the back.

Trial Court Opinion, 6/19/12, at 3-4 (citations to notes of testimony

omitted).

Appellant was subsequently charged with first-degree murder,

robbery, and related offenses in connection with this incident. On July 20,

2009, Appellant filed an omnibus pre-trial motion to suppress the physical

evidence seized from his person, and his inculpatory statement to police.

The trial court denied said motion on July 20, 2009. That same day,

Appellant waived his right to a jury and proceeded to a bench trial.

Thereafter, on July 23, 2009, the trial court found Appellant guilty of first-

degree murder, robbery, firearms not to be carried without a license, and

PIC. Appellant was found not guilty of criminal conspiracy.3 As noted,

Appellant was sentenced that same day to an aggregate term of life

imprisonment without the possibility of parole. Appellant did not file any

post-sentence motions or a direct appeal. Following the reinstatement of

____________________________________________

3 18 Pa.C.S.A. § 903.

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his direct appeal rights nunc pro tunc, Appellant filed a timely notice of

appeal on April 9, 2012.4

On appeal, Appellant raises the following issues for our review.

I. Did the trial court erroneously deny

[Appellant’s] pretrial motion for suppression of physical evidence where, at the time of the

arrest, police lacked probable cause to justify the custodial detention?

II. Did the trial court err in refusing to grant the

pretrial motion to suppress [Appellant’s] statement as a fruit of the unlawful arrest and

due to the Commonwealth’s failure to

demonstrate a knowing and voluntary waiver of his Miranda[5] rights?

III. Did the [trial] court abuse its discretion in

permitting the Commonwealth to elicit evidence that [Appellant] possessed a handgun

in the past where there was no evidence that the handgun was the murder weapon?

Appellant’s Brief at 9.6

In his first two issues, Appellant argues the trial court erred in denying

his pre-trial motion to suppress his inculpatory statement to police, as well

as all the physical evidence obtained from a search of his person. See id. at

17, 22. ____________________________________________

4 Appellant and the trial court have complied with Pa.R.A.P. 1925. 5 Miranda v. Arizona, 384 U.S. 436 (1966). 6 For the purposes of our review, we elect to address Appellant’s claims in a slightly different order than presented in his appellate brief.

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Our standard of review of the denial of a suppression motion is well

settled.

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. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and

quotations omitted), cert. denied, Jones v. Pennsylvania, 131 S.Ct. 110

(2010). Moreover, “[i]t is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.” Commonwealth v. Dutrieville, 932 A.2d 240, 242 (Pa.

Super. 2007) (citation omitted).

Specifically, Appellant argues the trial court erred in denying his

motion to suppress his inculpatory statement to police because “the

Commonwealth failed to demonstrate a knowing and voluntary waiver of

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[his] Miranda rights” prior to questioning him. Appellant’s Brief at 9, 22.

For the reasons that follow, we conclude that this claim is meritless.

“The determination of whether a confession is voluntary is a conclusion

of law, and as such, is subject to plenary review.” Commonwealth v.

Gaul, 912 A.2d 252, 254 (Pa. 2006) (internal citation omitted), cert. denied,

Pennsylvania v. Gaul, 128 S.Ct. 43 (2007). We employ a two-pronged

test to ascertain whether an appellant has validly waived his Miranda rights

prior to giving a statement to police. First, we consider “whether the waiver

was voluntary, in the sense that [the] defendant’s choice was not the end

result of governmental pressure[.]” Commonwealth v. Pruitt, 951 A.2d

307, 318 (Pa. 2008) (citation omitted), cert. denied, Pruitt v.

Pennsylvania, 129 S.Ct. 1614 (2009). Second, we consider “whether the

waiver was knowing and intelligent, in the sense that it was made with full

comprehension of both the nature of the right being abandoned and the

consequence of that choice.” Id. The burden rests upon the

Commonwealth to establish that the defendant knowingly and voluntarily

waived his Miranda rights. Id.

In determining whether the Commonwealth has satisfied its burden,

we “must consider the totality of the circumstances surrounding the

confession.” Commonwealth v. Housman, 986 A.2d 822, 840 (Pa. 2009),

cert. denied, Housman v. Pennsylvania, 131 S.Ct. 199 (2010). The

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following factors are important in evaluating the totality of the

circumstances.

[T]he duration and means of interrogation; the

defendant’s physical and psychological state; the conditions attendant to the detention; the attitude

exhibited by the police during the interrogation; and any other factors which may serve to drain one’s

powers of resistance to suggestion and coercion.

Commonwealth v. Perez, 845 A.2d 779, 787 (Pa. 2004) (citations

omitted).

Upon careful review of the record, we discern no basis upon which to

disturb the trial court’s decision to deny Appellant’s motion to suppress his

inculpatory statement to police. The record reveals that Appellant knowingly

and voluntarily waived his Miranda rights prior to being interviewed on

November 20, 2007. Detective Timothy Bass of the Philadelphia Police

Department testified that he orally read Appellant his Miranda rights from

standard police form 75-331D prior to questioning him. N.T., 7/20/09, at

56. The record further reveals Appellant read these Miranda rights together

with Detective Bass, and thereafter, signed and dated this form. Id. at 56,

62-63; see also Commonwealth Exhibit at 1, Form 75-331D, 11/20/07.

Detective Bass also testified that Appellant was alert, cooperative, and calm

during this colloquy, and did not appear to be under the influence of drugs

or alcohol. N.T., 7/20/09, at 56-58. Thereafter, Detective Bass read

Appellant seven additional questions from a second police form, 75-311E, to

ensure Appellant fully understood his Miranda rights. Id. at 58, 63. The

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record reveals Appellant answered these questions and then signed and

dated this form. Id. at 58, 64-65; see also Commonwealth Exhibit at 2,

Form 75-331E, 11/20/07. During the course of this interview, Appellant

made an inculpatory statement to police, in which he acknowledged playing

a role in the robbery and murder of the victim. Commonwealth Exhibit at 3-

9, Form 75-483A, 11/20/07. Furthermore, Appellant signed all seven pages

of this statement. Id. Based on the totality of the circumstances, we agree

with the trial court that Appellant fully understood and voluntarily waived his

Miranda rights. Trial Court Opinion, 6/19/12, at 8. Accordingly, Appellant’s

claim of trial court error must fail.

We now turn to Appellant’s claim the trial court erred in denying his

suppression motion “where, at the time of the arrest, police lacked probable

cause to justify the custodial detention.” Appellant’s Brief at 9, 17.

Appellant maintains the firearm and cell phone seized from his person, as

well as his subsequent inculpatory statement to police, should have been

“suppressed as fruits of the poisonous tree.” Id. at 22-23. For the following

reasons, we disagree.

The Fourth Amendment to the United States Constitution and Article I,

Section 8, of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures, “thereby ensuring the right of each

individual to be let alone.” Commonwealth v. Barber, 889 A.2d 587,

592 (Pa. Super. 2005) (citations and internal quotation marks omitted).

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“Evidence obtained from an unreasonable search or seizure is inadmissible

at trial.” Commonwealth v. Campbell, 862 A.2d 659, 663 (Pa. Super.

2004) (citation omitted), appeal denied, 882 A.2d 1004 (Pa. 2005). “To

secure the right of citizens to be free from such [unreasonable] intrusions,

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as

those interactions become more intrusive.” Commonwealth v. Pratt, 930

A.2d 561, 563 (Pa. Super. 2007) (citation omitted), appeal denied, 946 A.2d

686 (Pa. 2008).

This Court has recognized that there are three levels of intrusion

involved in interactions between members of the public and the police.

The first category, a mere encounter or request for information, does not need to be supported by any

level of suspicion, and does not carry any official compulsion to stop or respond. The second

category, an investigative detention … is lawful if supported by reasonable suspicion because, although

it subjects a suspect to a stop and a period of detention, it does not involve such coercive

conditions as to constitute the functional equivalent

of an arrest. The final category, the arrest or custodial detention, must be supported by probable

cause.

Commonwealth v. Conte, 931 A.2d 690, 692 (Pa. Super. 2007) (citations

omitted).

In order to justify reasonable suspicion, the detaining officer must

point to articulable facts that would lead the officer to believe that criminal

activity was afoot. Commonwealth v. Williams, 980 A.2d 667, 671 (Pa.

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Super 2009) (citation omitted), appeal denied, 990 A.2d 730 (Pa. 2010).

Whether reasonable suspicion existed is based on the totality of the

circumstances known to the officer at the time. Id. Probable cause, in turn,

“exists when an officer has knowledge of sufficient facts and circumstances,

gained through trustworthy information, to warrant a prudent man to believe

that the person seized has committed a crime.” Commonwealth v.

Slonaker, 795 A.2d 397, 401 (Pa. Super. 2002) (citation omitted), appeal

denied, 812 A.2d 1229 (Pa. 2002). “It is only the probability and not a

prima facie showing of criminal activity that is a standard of probable

cause.” Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super.

2005), appeal denied, 920 A.2d 831 (Pa. 2007). Whether or not probable

cause existed at the time of the stop must also be examined by a totality of

the circumstances. Commonwealth v. Anthony, 1 A.3d 914, 919 (Pa.

Super. 2010).

Instantly, the trial court found that, contrary to Appellant’s

contentions, “the legality of the seizure here turn[ed] on whether the stop

and frisk of [Appellant] was lawful.” Trial Court Opinion, 6/19/12, at 5. The

trial court ultimately concluded that it was, noting “the evidence adduced at

both the suppression hearing and at trial established that the police had

reasonable suspicion for an investigative detention of [Appellant] at the time

he was stopped by police.” Id. at 6. Upon careful review, we conclude the

trial court’s analysis of this issue as set forth on pages 4-7 of its opinion

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comprehensively discusses and properly disposes of Appellant’s remaining

suppression claims. Accordingly, we adopt said portion of the trial court’s

June 19, 2012 opinion as our own for purposes of this appellate review. See

id. at 4-7

In his third issue, Appellant contends the trial court erred in admitting

testimony concerning his prior possession of a firearm into evidence.

Appellant’s Brief at 26. In reviewing a trial court’s ruling on the admissibility

of evidence, our standard of review is one of deference. Questions

concerning the admissibility of evidence are within “the sound discretion of

the trial court, and its discretion will not be reversed absent a clear abuse of

discretion.” Commonwealth v. Selenski, 18 A.3d 1229, 1232 (Pa. Super.

2011) (citation omitted). As noted, “[a]n abuse of discretion is not merely

an error of judgment, but is rather the overriding or misapplication of the

law, or the exercise of judgment that is manifestly unreasonable, or the

result of bias, prejudice, ill-will or partiality, as shown by the evidence of

record.” Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005)

(internal citations and quotation marks omitted), appeal denied, 928 A.2d

1289 (Pa. 2007). Furthermore, “if in reaching a conclusion the trial court

over-rides [sic] or misapplies the law, discretion is then abused and it is the

duty of the appellate court to correct the error.” Commonwealth v.

Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted), appeal

denied, 986 A.2d 150 (Pa. 2009).

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In the instant matter, the trial court permitted the Commonwealth to

introduce the testimony of Appellant’s two prior girlfriends, Ebony Sawyer

and Phylicia Johnson, concerning his possession of a firearm. Specifically,

both witnesses testified, over Appellant’s objection, that they observed

Appellant in possession of a firearm within days of the victim’s murder.

N.T., 7/20/09, at 133-135; N.T., 7/22/09, at 24-28. Ebony Sawyer further

testified that Appellant stated, “somebody got their back blown out the

frame[.]” N.T., 7/20/09, at 133-136.

Appellant argues that this testimony was inadmissible because it was

not relevant to establish his “motivation or intention to commit a crime[,]”

or “show a common scheme or plan.” Appellant’s Brief at 27. Rather,

Appellant posits that the admission of said testimony “served only … to

demonstrate he has a criminal propensity to commit the crimes charged.”

Id. Appellant maintains, “neither woman testified as to any details that

could link the gun Appellant supposedly owned to the gun that was used to

kill [the victim,]” and said testimony “was not offered to show anything

other than that Appellant may have one time possessed a gun.” Id.

Appellant further argues he is entitled to a new trial because the probative

value of this testimony was outweighed by its prejudicial effect. Id. at 27-

28. For the following reasons, we disagree.

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“The threshold inquiry with admission of evidence is whether the

evidence is relevant.” Commonwealth v. Cook, 952 A.2d 594, 612 (Pa.

2008) (citations and bracket omitted).

Evidence is relevant if it logically tends to establish a

material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable

inference or presumption regarding a material fact.

Commonwealth v. Edwards, 903 A.2d 1139, 1156 (Pa. 2006) (citation

and internal quotation marks omitted), cert. denied, Edwards v.

Pennsylvania, 127 S.Ct. 2030 (2007).

In addition, “evidence is only admissible where the probative value of

the evidence outweighs its prejudicial impact.” Commonwealth v. Owens,

929 A.2d 1187, 1190 (Pa. Super. 2007) (citation omitted), appeal denied,

940 A.2d 364 (Pa. 2007). Our Supreme Court has characterized unfair

prejudice as that which has “a tendency to suggest decision on an improper

basis or divert the jury’s attention away from its duty of weighing the

evidence impartially.” Commonwealth v. Wright, 961 A.2d 119, 151 (Pa.

2008), citing Pa.R.E. 403, official comment.

The probative value of the [proffered] evidence might be outweighed by the danger of unfair

prejudice, confusion of the issues, misleading the jury, undue delay, pointlessness of presentation, or

unnecessary presentation of cumulative evidence.

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009)

(citations and internal quotation marks omitted).

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Upon careful review, we discern no abuse of discretion on the part of

the trial court in admitting testimony concerning Appellant’s possession of a

handgun into evidence. In our assessment, the probative value of said

testimony, given the conceivable connection of said firearm to the instant

crime, clearly outweighed its prejudicial impact. See Owens, supra at

1190. Contrary to Appellant’s contentions, we further note that the trial

court’s decision is fully supported by the applicable case law of this

Commonwealth. This Court has long recognized that,

[a] weapon shown to have been in a defendant’s possession may properly be admitted into evidence,

even though it cannot positively be identified as the weapon used in the commission of a particular crime,

if it tends to prove that the defendant had a weapon similar to the one used in the perpetration of the

crime.

Id. at 1191, quoting Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa.

Super. 2004), appeal denied, 876 A.2d 392 (Pa. 2005) (remaining citations

omitted).

Lastly, we deem the aforementioned testimony of Ebony Sawyer and

Phylicia Johnson relevant, in that it “supports a reasonable inference or

presumption” that Appellant had access to a firearm in the timeframe when

the victim was shot. See Edwards, supra.

Accordingly, for the foregoing reasons, we conclude that Appellant’s

claims on appeal merit no relief. Therefore, we affirm Appellant’s July 23,

2009 judgment of sentence.

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Judgment of sentence affirmed.

Judgment Entered.

Prothonotary

Date: 7/16/2013

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRlCT OF PENNSYLVANIA

CRlMlNAL TRlAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

v.

ALLEN DANIEL Y

BRONSON,J.

OPINION

I. PROCEDURAL HISTORY

CP-5 I-CR-OOOI 875-2008

FILED . JUN 19 2012

GfiminalA First JUdicialPJeals Unit

June 19,2012 ISifiCiOfPA

On July 23, 2009, foHowing a non-jury trial before the Honorable Renee Cardwell-

Hughes, defendant Allen Daniely was found guilty of one count of murder of the first degree (18

Pa.C.S. § 2502(a)), one count of robbery (18 Pa.C.S. § 3701(a)(1)(i)), one count of carrying a

firearm without a license (18 Pa.C.S. § 6106(a)(I», and one count of possessing an instrument of

crime (18 Pa.C.S. § 907(a».1 The Court immediately imposed the mandatory sentence of life in

prison for tlle first-degree murder charge. See 18 Pa.C.S. § IlO2(a)(I). Defendant did not file

post~sentcnce motions or an appeal. Defendant was represented at trial by Michael eoard,

Esquire.

On December 21, 2009, defendant filed a pro se Petition for Post-Conviction Collateral

Relief pursuant to the Post-Conviction Relief Act creRA"). Jeremy Gclb, Esquire, was

subsequently appointed to represent defendant. Mr. Gelb filed an amended petition on

defendant's behalf on June 21, 2011, alleging that trial counsel was ineffective for not filing a

direct .appeal of this Court's judgment of sentence as requested by defendant. As Judge Hughes

I Defendant was also charged with one count of conspiracy (18 fa.C.S. § 903), of which he was acquitted. N.T. 7/23/2009 at Ill.

had retired from the bench, this case was assigned to the undersigned trial judge. On March 9,

2012, the Commonwealth agreed to the reinstatement of defendant's right to a direct appeall1lme

pro lune. This timely appeal followed.

Defendant has now appealed from the judg.ment of sentence entered by the Court on the

grounds that: 1) the trial court erred in denying defendant's motion to suppress physical

evidence, as defendant "was stopped on a public street without a warrant and in the absence of

probable caUSe to believe that at the time of his arrest, [defendant] had committed a crime;" 2)

the trial court erred in denying defendant's motion to suppress a statement given by defendant to

police; and 3) the trial court erred in overruling defendant's objections to testimony concerning

defendant's prior possession of a firearm. Concise Statement of Errors Complained of on

Appeal Pursuant to Rule I 925(b), Pa.R.A.P. ("Statement of ElTors") at ~~ 1-3. For the reasons

set forth below, defendant's claims are without merit and the judgment of sentence should be

affirmed.

II. FACTUAL BACKGROUND

At the hearing on the Motion to Suppress, the Commonwealth presented the testimony of

Philadelphia Police Detective Timothy Bass and, by stipulation, the testimony of Phil a delphia

Police Serge.:'lnt Gerald Grdinich. At trial, the Commonwealth presented the testimony of Ebony

Sawyer, Phylicia Johnson, Richard Murphy, Dr. Bennett Preston, Philadelphia Police Detectives

Tracy Byard and Timothy Bass, Philadelphia Police Sergeant Gerald Grdinich, Philadelphia

Police Officers 10hn Erickson, Gary Guraldo, Louis Grandizio. Robert lala, and, by stipulation,

the testimony of Philadelphia Police Officer Christopher Cunm1ings. Viewed in the light most

favorable to the Commonwealth as the verdict winner, their testimony established the following.

2

On November 17,2007, at approximatciy 8:30 p.m., Darryl Jones stopped by the home of

his friend, Richard Murphy, on Wisler Street in North Philadelphia. N.T. 7/2212009 at 50-54.

After being at the house for a few minutes, Mr. Jones stepped outside to take a call on his cell

phone. N.T. 7/2212009 at 54-55_ He exited through Mr. Murphy's backyard, which faced the

intersection of Rodney Street and Homer Street N.T. 7/22/2009 at 53-55. Shortly after Mr.

Jones went outside, Mr. Mutphy heard two gunshots and walked outside to investigate. N.T.

7/2212009 at 55-56. He saw Mr. Jones lying inlhe middle of the street. N.T. 7122/2009 a156.

Philadelphia Police Officer JolUl Erickson was patrolling nearby when he heard a

gunshot. N.T. 7/2012009 at 11 0-112. Officer Erickson drove around the block, looking for signs

of gunfire, and then received a police radio transmission that a man was lying in the intersection

of Rodney and Homer Streets, approximately two blocks away. N_T. 7/2012009 at 113-114.

Officer Erickson arrived at the location and found Darryl Jones lying facedown and surfering

from a single gUlL<hot wOUlld to the back. N.T. 712012009 at 114-115; 7/23/2009 at 53. Mr.

Jones wa<; transported to Einstein Medical Center, where he was pronounced dead. N.T.

712012009 at 17, 116. His cell phone was missing.

Two fired cartridge casings from a .40 caliber handgun were recovered from the scene of

the murder. N.T. 7/20/2009 at 115; 712212009 at 72. Police obtained Mr. Jones's cell phone

records and began tracking the phone's signal, as it had been left on and was being used to place

and receive calls. N.T. 7/2212009 at 130-139. On November 20, 2009, with the assistance of the

FBI, Philadelphia Police traced the cell phone's signal to a house at the intersection of

Gennantown Avenue and Washington Lane. N.T. 7(2212009 at 139-140. After police saw

defendant exit the house with a cell phone in his hand, they stopped defendant and patted him

down. N_T. 7122/2009 at 140-142. While patting him down, police found a 040 caliber handgun

in a holster underneath his pants. N.T. 7122/2009 at 142. After verifying that the cell phone

belonged to the murder victim, police arrested defendant. N.T. 7122(1009 at 142-143.

Once in custody, defendant gave an inculpatory statement to police, in which he admitted

playing a roie in the robbery and murderofMr. Jones. N.T. 7(12/2009 at 144-160. Detectives

also interviewed two girlfriends of defendant, Ebony Sawyer and Phylicia Johnson. N.T.

7120/2009 at 146-147; 712212009 at 20. Both women told the police that they had seen defendant

with a glm in the timeframe surrounding the murder, and that defendant had called them

numerous times from Mr. Jones's phone. N.T. 712012009 at 133-136, 146-152; 712212009 at 24-

35. Ms. Sawyer also told police that defendant told her he had committed the murder,

demonstrating with his gun how he shot Mr. Jones in the back. N.T. 712212009 at 99-100.

111. DISCUSSION

A. Motion to Suppress Physical Evidence

Defendant first claims that the trial court erred in denying his pretJial motion to suppress

physical evidence, since "he was stopped on a public street without a warrant and in the absence

of probable cause to believe that at the time of his arrest, [defendant] had committed a crime.

The resulting seizure of a gun and a cell phone found on the defendant's person should have

suppressed as flUits of the unlawful arrest .... " Statement of Errors at ~ 1. Tllis claim is without

merit.

"In reviewing a ruling on a suppression motion, the standard of review is whether the

factual findings and legal conclusions drawn therefrom arc supported by the evidence."

Commonwealth v. Kuzmanko, 709 A.2d 392, 396 (Pa. 1998) (citations omitted). Additionally,

"[ w]here the record supports the findings of the suppression court, [the reviewing court] is bound

by those facts and may reverse only if the legal conclusions drawn therefrom are in error." lei. at

396. "The suppression court has sole authority to assess the credibility of the witnesses and is

entitled to believe all, part, or none of the evidence presented." Commonwealth v. Shine, 784

A.2d 167, 168 (Pa. Super. 200 I), appeal denied, 796 A.2d 316 (Pa. 2002).

Here, defendant claims that the cell phone and gun that were found on his possession

should have been suppressed as the fruit of an lmlawful arrest. The evidence, however,

established that the cell phone and gllil were seized prior to defendant's arrest after he was

stopped by police and frisked for weapons. N.T. 7/22/2009 at 140-142. Therefore, the legality

of the seizure here at issue turns on whether the stop and frisk of defendant was lawful.

It is well~established that there are three levels of interaction between police officers and

citizens. The first, a "mere encounter," need not be supported by any level of suspicion since

such an interaction is not a "seizure" within the meaning of the federal and state constitutional

prohibitions against tu1feasonable searches and seizures. The second, an "investigative

detention," must be supported by reasonable suspicion. This level of encounter subjects a person

to a stop and a period of detention, but involves less coercive conditions than the functional

equivalent of an arrest. See Commonwealth v. Smith, 836 A.2d 5, 10 CPa. 2003). When

determining whether reasonable suspicion exists, the Court must look to the totality of

circumstances and view those circumstances through the eyes ofa trained officer, and not an

ordinary citizen. Commonwealth v. Riley, 715 A.2d I J 31, 1135 CPa. Super. 1998), appeal

denied, 737 A.2d 741 (pa. 1999). The last level of interaction, arrest or custodial detention, must

be supported by probable causc. Smith, 836 A.2d at 10. There is probable cause to arrest a

defendant when the facts and circumstances known to the police officers and of which they have

reasonably tmstworthy information are sufficient to warrant a person of reasonable caution in the

belief that the person to be arrested has committed an offense. Commonwealth v. Dommel, 885

A.2d 998, 1002 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007).

Here, the evidence adduced at both the suppression hearing and at trial established that

the police had reasonable suspicion for an investigative detention of defendant at the time that he

was stopped by police. Before Mr. Jones was killed, he was in possession of a cell phone. N.T.

7/2212009 at 53-55. After he was killed, his cell phone was missing. Cell phone records proved

that someone was using the phone repeatedly following Mr. Jones's death. N.T. 7/2212009 at

130-139. With the help of the FBI, the police tracked the cell phone signal to a residence. N.T.

7/2212009 at 139-140. When police saw defendant exiting that residence with a cell phone in

hand, the totality of the circumstances plainly gave rise to a reasonable suspicion by police that

defendant was involved in the robbery and murder ofMr. Jones.

As for the frisk for weapons, it is well-established that officers may lawfully pat down a

person who is properly stopped for an investigative detention if the officers have a reasonable

belief that the defendant is anned and dangerous. Commollwealth v. Zook, 851 A.2d 178, 1 S 1

(Pa. Super. 2004), appe(ll denied, 862 A.2d 1255 (Pa. 2004). To detemine whetller officers had a

reasonable beJiefthat a person is armed and dangerous, the Court must detennine if a reasonably

prudent person, under all of the facts and circumstances known to the officers, would be

warranted in the belief that his safety was in danger. Zook, 851 A.2d at 181. Here, police were

attempting to locate a suspect in a murder case in which the victim was shot with a firearm.

They had tracked the murder victim's cell phone to the location that defendant was exiting.

Under these circumstances, the officers had ample reason to believe that a protective patdown

was necessary for officer safety.

During the patdown, officers discovered a handgun concealed in a holster underneath

defendant's pants. N.T. 712012009 at 40-41. Police then dialed the number of the murder

victim's cell phone, and the phone that defendant had been holding in his hand began to ring.

NT. 712012009 at 41-43. Police had now identified the phone in defendant's possession as

belonging to a murder victim, who had been killed by a gun similar to defendant' s gun three days

before. These facts and circumstances plainly established probable cause to believe that the cell

phone and the gun were evidence of a crime. Therefore, they were properly seized by the police

and defendant was lawfully arrested. Because the stop of defendant, the patdown, and the

seizure of the cell phone and gun were all lawful, the trial court properly denied defendant's

motion to suppress.

B. lv/Olion 10 Suppress Defendant's Statement

Defendant next claims that the trial court erred in denying defendant I s motion to suppress

the statement that he gave police after his arrest. Statement of Errors at ~ 2. This claim is

without merit.

At a hearing on a motion to suppress a defendant's inculpatory statement, the burden is

on the Commonwealth to show "by a preponderance of the evidence that the confession was

voluntary and that the waiver of constitutional rights was knowing and intelligent."

Commonwealth v. Kichline, 361 A2d 282, 290 (Pa. 1976). In determining whether the

Commonwealth has satisfied its burden, the Court must look to the totality of circlUTIstances. Id.

Defendant asserts two bases for his claim that the Court erred in denying his motion to

suppress his statement. First, argues that "the said statement was obtained as a direct

consequence of the unlawful seizure of defendant ... and should have been suppressed as a fruit

of the unlawful arrest of [defendant]." Statement of Errors at ~ 2. For the reasons set forth in the

7

section above, the arrest of defendant was entirely lawful. Accordingly, defendant's first ground

for attacking the admission of his statement should be rejected,

In addition, defendant claims that his statement to police should have been suppressed

because "it was obtained in the absence of sufficient indicia that the [dJefendant voluntarily

agreed to waive his constitutional rights under Miranda v. Arizona." Statement of Errors at '12.

This claim is likewise without merit.

The Commonwealth's evidence regarding defendant's motion to suppress his statement

was uncontradicted and established the following. After defendant was arrested, he was taken to

the Homicide Unit for questioning. N.T. 7/2012009 at 51. Before beginning the interview, the

detectives gave defendant his Miranda warnings orally, reading from a standard police fonn.

N.T. 7/2012009 at 56. As Detective Bass read defendant the warnings, he asked defendant to

read them along with him. N.T. 7/20/2009 at 62. After Detective Bass was finished reading

defendant his rights, defendant signed the fonn. N.T. 712012009 at 56. At the time, defendant

appeared to be alert, cooperative, and "more calm than nervous." Id. He did not appear, in any

way, to be under the influence of drugs or alcohol. N.T. 712012009 at 57-58. Detectives then

read defendant seven questions from another standard police fonn to make certain that defendant

fully comprehended his Miranda rights. N.T. 712012009 at 58, 63. Defendant answered those

questions and signed the second fonn. N.T. 712012009 at 58,64-65. There is no indication

anywhere in the record that defendant was mistreated in any manner prior to, or during, the entire

process of the police securing defendant's waiver of his kfiranda rights. Accordingly, there was

ample evidence to support the trial judge's conclusion that defendant voluntarily waived his

rights under Miranda.

Q

C. Testimony Concerning Defendant's Prior Possession of a Firearm

Defendant claims that the trial court erred in overruling defendant's objections to

testimony concerning defendant's prior possession of a firearm, as that testimony "pertained to

uncharged criminal conduct that was neither relevant nor admissible under an exception to the

general rule that prior crimes or bad acts are generally inadmissible to prove the Defendant's

propensity to conunit the crimes charged in the Information." Statement of Errors at 1 3. This

claim is without merit.

"The general rule is that where a weapon cannot be specifically linked to a crime, such

weapon is not admissible as evidence." Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa.

1998). However, "[t]he exception to this general rule is where 'the accused had a weapon or

implement suitable to the commission of the crime charged. [This weapon] is always a proper

ingredient ofthe case for the prosecution. '" Commonwealth v. Owens, 929 A.2d 1187, 1191 (Pa.

Super. 2007) (quoting Robinson, 721 A.2d at 3S 1), appeal denied, 940 A.2d 364 (Pa. 2007). "A

weapon shown to have been in a defendant's possession may properly be admitted into evidence,

even though it cannoL positively be identified as the weapon used in the commission of a

particular crime, if it tends to prove LhaL the defendant had a weapon similar to the one used in

the perpetration of the crime." Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super.

2004), appeal denied, 876 A.2d 392 (pa. 2005). "Uncertainty whether the weapons evidence

was actually used in the crime goes to the weight of such evidence, not its admissibility."

Owens, 929 A.2d at 1191.

Here, the Commonwealth presented evidence at trial that both of defendant's girlfriends,

Ms. Sawyer and Ms. JOhnsOll, told police that they had seen defendant with a small handgun in

the days surrounding the shooting. Ms. Sawyer told police that two days after the murder, she

o

saw defendant ';playing" with a small handgun and he told her that he had shot Mr. Jones.

According to Ms. Sawyer. defendant stated that '~he tore [Mr. Jones's] back out the frame," and

showed her how he shot him in the back. NT. 7/2012009 at 133-136, 146-152; 7/2212009 at 99-

100. Ms. Johnson told police that she, too. had seen defendant with a small handgun during the

period of time surrounding the murder. N.T. 712212009 at 24-26. Because these two witnesses

saw defendant in possession of a handgun that could have been uscd in the murder here at issue.

their testimony regarding the weapon was relevant and admissible. Any uncertainty about

whether the gun they observed was the actual murder weapon goes to the weight of the evidence

not its admissibility. See Owens, 929 A.2d at 1191. Accordingly, defendant's claim should be

rejected.

IV. CONCLUSION

For all of the foregoing reasons, the Court'sjudgment of sentence should be affirmed.

BY THE COURT:

GLENN B. BRONSON, J.

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