Com. v. Thomas (memorandum)

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J-S59014-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DWAYNE BERNARD THOMAS Appellant No. 206 EDA 2012 Appeal from the Judgment of Sentence August 22, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0011593-2011 BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J. MEMORANDUM BY PANELLA, J. Filed: January 3, 2013 Appellant, Dwayne Bernard Thomas, appeals from the judgment of sentence entered on August 22, 2011, in the Court of Common Pleas of Philadelphia County. We affirm. On March 18, 2011, Officers Nathaniel Harper and Anthony Gamble were on duty in plain clothes and in an unmarked car driving Philadelphia. At approximately 6:40 p.m., the officers observed Thomas in the street straddling a bicycle and engaging in a brief conversation with another individual. The officers observed the individual hand Thomas cash during their conversation. The officers immediately stopped their vehicle and upon exiting identified themselves as police officers. Upon seeing the officers, Thomas stuck his hands in his pockets. Concerned for his and his partner s J-S59014-12 safety, Officer Gamble frisked Thomas. Officer Gamble grabbed the part of Thomas s hand that was not in his pocket, and told him not to move. When queried by the officer as to whether he had anything in his pocket, Thomas responded, no. While Thomas was still straddling the bicycle, Officer Gamble frisked him. During the frisk, Officer Gamble felt a small circular object, the shape of a pill, in Thomas s pocket. He asked Thomas what it was to which Thomas told him that it was a morphine pill. Thomas was subsequently arrested. A search incident to arrest yielded a single pill, later confirmed to be morphine, and a bag of marijuana. The officers then radioed for a marked car to come and transport Thomas. While they waited, the officers had Thomas sit on the ground. When the marked car arrived, Officer Harper helped Thomas stand up after which he discovered a baggie containing four yellow packets of crack cocaine directly beneath where Thomas had been sitting. Thomas was charged with two counts of possession of controlled substances. Thomas filed an omnibus pre-trial motion to suppress, which was denied. Following a bench trial in municipal court on August, 22, 2011, Thomas was found guilty of knowingly or intentionally possessing both a small amount of marijuana and a controlled or counterfeit substance. Thereafter, Thomas was sentenced to a period of nine months probation. Thomas then filed a petition for a writ of certiorari to the Court of Common Pleas from the denial of his motion to suppress. That court denied Thomas -2- J-S59014-12 petition, finding the record supported the findings of fact and conclusions of law made with respect to Thomas s suppression issues. This appeal followed. On appeal, Thomas raises the following issue for our review: Did not the trial court and reviewing court err in denying petitioner s motion to suppress the evidence recovered from petitioner where the petitioner was frisked and searched without reasonable suspicion or probable cause and subjected to custodial interrogation without the requisite Miranda warnings in violation of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution and the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution and the evidence recovered was the fruit of the unlawful search and illegal questioning? Appellant s Brief, at 3. The issue raised by Thomas challenges the propriety of the trial court s denial of Thomas s motion to suppress. The standard of review an appellate court applies when considering an order denying a suppression motion is well-established. We may consider only the Commonwealth s evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Russo, 594 Pa. 119, 126, 934 A.d 1199, 1203 (2007) (citation omitted). Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id. However, it is also well settled that we are not bound by the suppression court s conclusions of law. Id. -3- J-S59014-12 With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Only factual findings which are supported by the record are binding upon this [C]ourt. Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) (citations omitted). Thomas advances a three-pronged argument that the trial court erred in denying his motion to suppress the physical evidence found on his person. First, Thomas contends that the police lacked reasonable suspicion to perform an investigatory stop. Thomas next argues that the protective patdown search was not justified because the police possessed no reasonable basis to believe that he was armed and dangerous. Finally, Thomas asserts that the police exceeded the permissible bounds of the pat-down search by manipulating the objects found in his pants. After a thorough review of the certified record, the parties briefs, and the applicable law, we find no merit to Thomas s issues raised herein on appeal. We agree with the reasoning of the trial court and affirm on the basis of its comprehensive, well-written opinion with regard to this claim. See Trial Court Opinion, 2/16/12, at 1-13. Judgment of sentence affirmed. Jurisdiction relinquished. -4-

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