Com. v. Coward, N. (memorandum)

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J-S26028-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. NOEL DEVON D. COWARD, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2609 EDA 2013 Appeal from the Judgment of Sentence Entered April 1, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0010435-2009. BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ. MEMORANDUM BY SHOGAN, J.: FILED JULY 15, 2014 Appellant, Noel Devon D. Coward, appeals from the judgment of sentence entered April 1, 2013. We affirm. The trial court summarized the procedural and factual history of this case as follows: Procedural History On February 12, 2009, the defendant, Noel Devon D. Coward, was arrested and charged with Robbery, Criminal Conspiracy, Possession Of Firearm Prohibited, Firearms not to be Carried without License, Carrying a Firearm in Public in Philadelphia, Theft By Unlawful Taking, Receiving Stolen Property, Possession of an Instrument Of Crime (PIC), Terroristic Threats, Simple Assault, and Recklessly Endangering Another Person (REAP). On November 2, 2011, Judge Hill granted the bad acts evidence. On November 4, 2011, Judge Hill denied the f ____________________ *Former Justice specially assigned to the Superior Court. J-S26028-14 court identifications. On November 2, 2011, the defendant appeared before Judge Hill and elected to be tried by jury. On November 15, 2011, Judge Hill declared a mistrial after the jury could not return a verdict.1 1 On May 10, 2011, the defendant filed a Motion for Speedy Trial pursuant Pennsylvania Rule of Criminal Procedure 600(E) before the Honorable Glynnis Hill. From a review of the record, it appears to this Court that although Judge Hill did not rule on the defense counsel conceded that the Motion was not meritorious. N.T. 11.1.2013 Motion at 5. On April 4, 2012, the defendant attempted to file a pro se Motion to Dismiss pursuant Pennsylvania Rule of Criminal Procedure 600. The defendant was represented by counsel at the time; thus, this Court was not required to rule on such Motion. Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). However, a review would not have merited relief even if properly submitted to this Court. The majority of the time between the November 15, 2011 mistrial and the February 5, 2013 retrial of this case was attributable trial schedule. On February 5, 2013, the defendant appeared before this Court and elected to be tried by jury. On February 8, 2013, the jury found the defendant guilty of Robbery and PIC. On April 1, 2013, this Court sentenced the defendant to consecutive terms of imprisonment of ten to twenty years for Robbery and two and a half to five years for PIC. On April 9, 2013, the defendant filed Post-Sentence Post-Sentence Motions. On June 12, 2013, after failing to file a timely Notice of Appeal, the defendant filed a Post Conviction Relief Act Petition requesting nunc pro tunc reinstatement of his appellate rights. On August 29, 2013, this Court granted the Petition. On September 17, 2013, the defendant filed a Notice of Appeal. On -2- J-S26028-14 September 18, 2013, this Court ordered the defendant submit a Statement of Matters Complained of on Appeal pursuant Pa.R.A.P. 1925(b). On October 8, 2013, this Court granted the Statement. On October 25, 2013, the defendant submitted a timely Statement. Facts On February 3, 2009, Eframe Worke was working as a cashier at Patriot Parking on 23rd and Arch Streets in Philadelphia. At about 2:30 p.m., the defendant and his unidentified co-conspirator asked Mr. Worke about the rates for the parking garage. N.T. 2.6.2013 at 15-16. When Mr. Worke was looking up the rates, the defendant entered the booth and held a gun to his stomach. The coconspirator told Mr. Worke not to move and the defendant demanded cash. The defendant opened the cash drawer and phone, ordered him not to move, and then left, walking towards Market Street. N.T. 2.6.2013 at 17-18, 26, 31. called the police. Mr. Worke described the defendant to the police as in his late twenties or early thirties, skinny and about five foot six inches tall, with a lighter complexion and something funny about his front teeth. He described the co-conspirator as about six foot one inch tall, about 200 to 215 pounds with a darker complexion and wearing a white-hooded shirt. N.T. 2.6.2013 at 15-16, 34, 38-39. Three days later, Paulos Negusse was robbed by the defendant. Mr. Negusse was working as a parking attendant at the 2030 Rittenhouse Square parking garage. On February 6th, 2009, at approximately 7:50 p.m., Mr. Negusse was parking cars in the garage when the defendant yelled at Nr. Negusse asking how much he would be charged to park for four hours. Believing he was a customer, Mr. Negusse approached the defendant, who then pushed Mr. Negusse. The defendant and his co-conspirator put Mr. Negusse on the hood of a car and demanded money. face. The defendant told Mr. Negusse that he would shoot him if -3- J-S26028-14 he did not give the defendant money. They searched Mr. The defendant and his co-conspirator ran towards 21st and Market Streets. N.T. 2.6.2013 at 116-117, 123-128, 136-137. Mr. Negusse described the defendant as a black male about five-foot-five to five-foot-six, 160 pounds, medium complexion wearing a gray knit hat and a black-hooded shirt. He described the co-conspirator as a black male about six-foot, 180 to 190 pounds, lighter complexion, and wearing a gray knit hat and dark gray jacket.2 N.T. 2.6.2013 at 149. 2 Mr. Negusse was permitted to testify as other acts evidence for the purpose of identification per a ruling by Judge Hill. On February 11, 2009, at approximately 6:20 p.m., at 524 North 15th street, Detective Paul Guerico stopped the vehicle the defendant was driving. Detective Guerico observed that the defendant and the passenger, Terrance Wongas, matched the descriptions in a flash information regarding two gunpoint robberies in the area.3 Detective Guerico also noticed the defendant had a gap in his front teeth matching the description given by Mr. Worke. Detective Guerica detained both males for further investigation. A subsequent search of the vehicle pursuant [to] a search warrant produced a lighter that looked like a silver gun. The defendant was arrested that same day. N.T. 2.6.2013 at 190-195, 208; N.T. 2.7.2013 at 19-22. 3 The flash information actually contained information regarding multiple robberies; however, only the two admissible robberies were permitted to be referenced by Detective Guerico. N.T. 2.5.2013 at 75-76. On February 13, 2009, Mr. Negusse identified the defendant from a photo array. On April 6, 2009, both Mr. Worke and Mr. Negusse identified the defendant at a line-up. On August 13, 2009, Mr. Worke identified the defendant as the person who robbed him[,] at the preliminary hearing. At the identified the defendant as the person who robbed them. N.T. 2.6.2013 at 40-43, 68, 155-158. -4- J-S26028-14 Trial Court Opinion, 11/13/13, at 1-4. Appellant presents the following issues for our review: DID THE LOWER COURT ERR BY GRANTING THE DUCE OTHER CRIMES EVIDENCE FOR PURPOSES OF PROVING IDENTIFICATION AND COMMON, PLAN, SCHEME, AND DESIGN? FOR A MISTRIAL PROFFERED IN REACTION TO COMMENTS MADE BY THE PROSECUTOR DURING HER OPENING SPEECH? FOR A MISTRIAL PROFFERED ON ACCOUNT OF NUMEROUS REFERENCES AT TRIAL TO OTHER ROBBERIES COMMITTED IN CENTER CITY? DID THE TRIAL COURT ERR BY OVERRULING CLOSING COMMENTS OF THE PROSECUTOR THAT REFERRED TO EVIDENCE DE HORS THE RECORD AND CONSTITUTED PURE SPECULATION? TO SUPPRESS PHYSICAL EVIDENCE BECAUSE IT WAS SEIZED WITHOUT PROBABLE CAUSE AND WAS THE FRUIT OF AN ILLEGAL ARREST? (verbatim). Appellant first argues that the trial court abused its discretion when it ruled that the Commonwealth could introduce other crimes evidence, specifically the crime involving Paulos Negusse, to prove identity and common plan, scheme and design.1 maintains that in this case, the alleged similarities between the robberies 1 For clarification purposes, we note that the charges at issue in this case stem from the crimes committed against Eframe Worke. -5- J-S26028-14 were simply characteristics common to a large number of robberies, and were not so unique such that one could definitively conclude that the same perpetrators committed both crimes. Id. at 19that the trial court also erred by finding that the probative value of the evidence outweighed its prejudicial effect. Id. at 21. With respect to the pretrial ruling by the trial court as to the admissibility of the other crimes evidence, the following standard of review applies: On appeals challenging an evidentiary ruling of the trial will not be reve of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, Commonwealth v. Aikens, 990 A.2d 1181, 1184-1185 (Pa. Super. 2010) (internal citations omitted). Our Supreme Court has discussed evidence of other bad acts and the related exceptions as follows: Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). In determining whether evidence of other prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its prejudicial impact. -6- J-S26028-14 Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009). Evidence of other bad acts is admissible to prove a common plan or roof of one tends to Commonwealth v. Ross, 57 A.3d 85, 103 (Pa. Super. 2012). When ruling upon the admissibility of evidence under the common plan exception, the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super. 2007). Additionally: the trial court must assure that the probative value of the evidence is not outweighed by its potential prejudicial impact upon the trier of fact. To do so, the court must balance the potential prejudicial impact of the evidence with such factors as the degree of similarity established between the incidents of criminal conduct, the Commonwealth's need to present evidence under the common plan exception, and the ability of the trial court to caution the jury concerning the proper use of such evidence by them in their deliberations. Id. In the case at bar, the fact pattern involved in the two incidents was markedly similar. The trial court identified the following factors in determining that the two robberies were part of a common scheme or plan: -7- J-S26028-14 1. Both victims described one of his attackers as tall and the other as short. 2. Both victims were working as parking lot attendants. 3. Both robberies were committed in parking garages in the same geographical area. 4. Both robberies were committed with what appeared to be a silver gun. 5. Both robberies were committed by two black males. 6. The robbers took cash from both victims. 7. The robbery of Mr. Negusse was committed in the early evening and the robbery of Mr. Worke was committed in the late afternoon. 8. The robberies were within three days of each other. The level of commonality between the crimes convinces this Court that the occurrence of these crimes was not a mere coincidence, but that they are so similar that they share a perpetrator. Thus, the evidence was properly admitted to prove the identity of the defendant. This Court finds that the The robbery of Mr. Negusse was a distinctive crime that was so similar to the robbery of Mr. Worke that the proof the defendant committed one tends to prove the defendant committed the other. Trial Court Opinion, 11/13/13, at 15-16. agree that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Thus, -8- J-S26028-14 we conclude that the trial court did not abuse its discretion in admitting evidence of other crimes. probative value of this evidence was outweighed by its prejudice. The other crimes the testimony of one witness, where the trial took place four years after the robbery, and where Appellant denied involvement and was not apprehended until more than a week after the crime. See , 836 A.2d 966, 970 (Pa. Super. 2003) (evidence of a common scheme, plan or design involving various similarly situated complainants is relevant to bolster the credibility of those complainants.) Furthermore, the trial court issued an instruction directing the jury that it could not consider the evidence of the Negusse robbery for any purpose other than to establish a common scheme, plan, or design, and identity. N.T., 2/6/13, 173-174; N.T., 2/7/13, 132Commonwealth v. Brown instruction minimized any undue prejudicial effect. It is wella motion for a mistrial is limited to determining whether the trial -9- J-S26028-14 an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or illis of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing cautionary instructions are adequate to overcome prejudice. Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (internal citations omitted). Appellant argues that the trial court erred in denying his motion for a wherein she referenced other robberies for which Appellant was not on trial. . Appellant further maintains that the trial court erred by overruling an objection to an opening comment where the prosecutor stated that Appellant had robbed Mr. Negusse. Id. at 23. Appellant asserts t the jury was warranted. Id. at 30. While it is improper for a prosecutor to offer any personal opinion as to guilt of the defendant or credibility of the witnesses, it is entirely proper for the prosecutor to summarize the evidence presented, to offer reasonable deductions and inferences from the evidence, and to argue that the evidence must be allowed to respo any challenged statement must be viewed not in isolation, but in -10- J-S26028-14 free to present his or her arguments with logical force and Commonwealth v. Bryant, 67 A.3d 716, 727-728 (Pa. 2013)(internal citations omitted). case and attempt to explain to the jury the evidence that would establish evidence regarding the robbery of Negusse was admissible, and the prosecutor referenced that testimony in the attempt to establish that there in the eyes of the jury. Further, the court clarified for the jury that Appellant was on trial for one robbery. N.T., 2/5/13, at 36-37. Additionally, the trial court explained that Mr. Worke was the victim of the robbery which was the basis for the criminal charges at issue at the trial and that evidence of the other robbery was being introduced in order to establish a common plan or scheme. Id. at 37. The prosecutor also reminded the jury that Appellant was being charged with one count of robbery and one count of possession of an instrument of crime and that Mr. Negusse was not a victim of those crimes for which Appellant was being tried. Id. -11- J-S26028-14 Appellant also states in his brief that the prosecutor: intimated rather strongly that the trial was unnecessary and that the trial was a waste of time because appellant certainly was guilty not only of the crimes herein but also crimes for which he was not being tried and that the jury should convict appellant because he was guilty of the other crimes. sta prosecutor did not, in any way, intimate that the trial was unnecessary or a waste of time because Appellant was guilty. Such claim has no factual basis in the transcript. Appellant next motion for a mistrial on the basis that Detective Louis Velazquez made numerous references at trial to other robberies committed in Center City. s not on trial for those crimes, and those references permitted the jury to convict Appellant based on an inference that he was involved in the commission of those crimes. Id. th Id. whether this issue has been properly preserved. We note that Appellant did not make a motion for a mi -12- J-S26028-14 See Pa.R.A.P. 302; Pa.R.Crim.P. 605(B) (a motion for mistrial shall be made at the time the event prejudicial to the defendant occurs). Because Appellant failed to make a motion for a mistrial following the testimony of the two Detectives, we conclude that this issue is waived. Furthermore, even if the issue had been properly preserved, we warrant the grant of a mistrial. The trial court addressed this issue as follows: is not required to sanitize the trial to eliminate all form part of the history and natural development of the events Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004)(citing Commonwealth v. Serge, 837 A.2d 1255, 1260-61 (Pa. Super. 2003)). Moreover, none of the challenged references specifically state that there were robberies other than those of Mr. Negusse and Mr. Worke. These references are vague and the words robberies as three or more. Simply put, there was no evidence of robberies other than those of Mr. Worke and Mr. Negusse introduced directly nor indirectly referenced at trial. Additionally, any prejudice suffered by the oblique references to possible other robberies by the defendant was de minimis. This claim is meritless. -13- J-S26028-14 summation of the evidentiary references and had we not found the issue waived, we would affirm on this issue on this basis. Appellant next argues that he was deprived of a fair trial when the prosecutor, in her closing argument, referred to evidence that had not been -36. Appellant identifies comments made by the prosecutor referring to Terrance Wongas and the gun-shaped lighter as the basis for this claim. Id. at 37-38. Appellant contends: The comments were improper because the record is devoid of any evidence who the person was who was in the car with appellant when the police stopped him or what, if any, role that person played in the crime for which appellant was being tried. In addition, the comments regarding the cigarette lighter were improper because the car within which the lighter was found did not belong to appellant as the prosecutor claimed. Id. at 37-38. Appellant explains that it is not his vehicle; rather, it belonged Id. at 40. must be granted because it is clear that the trial court erred in overruling prosecutor shall not make references to evidence not introduced during trial. Id. at 36. Reviewing the references made by the prosecutor during closing with which Appellant takes issue, in the context of both defense and the -14- J-S26028-14 made in response to statements made by defense counsel in his closing argument. In his summation, defense counsel made the following statements: s person in that car. Where is he? What happened to him? make a other mysterious gentleman was? compartment If it was found in the glove You could at least make an argument that if it was in the middle, *** N.T., 2/7/13, at 83-85. In response, the prosecutor made the following statements in her closing: [Prosecutor]: [Defense counsel] wants to say, how come we guy who is the codefendant in a robbery? How come that guy -15- J-S26028-14 I committed a crime with this defendant. I also robbed two people in the parking lot. And I would like to testify in that case and admit to that under oath and testify against my codefendant? Is that what he is saying is suppose[d to] happen here? going to happen? Terrance Wongas, the passenger in that car, if because he was identified -[Defense Counsel]: respectfully. Judge, none of this is on the record, The Court: argument you made. erence[] from the You may proceed. [Prosecutor]: Thank you. Terrance Wongas, if he is the other person, is never going to come back and admit to that, ever. Why would he? Why ess that [the] Commonwealth is suppose[d] to present? That is ridiculous. and Paulos identifying this as the gun that was used in the robbery. Eframe said it looked similar. I say, how is it similar? He said, the same size and the same shape. Paulos, exactly the same gun, he said. They both identified this and we found this. We recovered this. And you heard where this was recovered from. In his car. It was in his car. Eight identifications and the weapon in his car. ... -16- J-S26028-14 N.T., 2/7/13, at 114-117. In addressing this issue, the trial court stated: Th wherein she references Terrance Wongas, the passenger in the vehicle when the defendant was stopped, and suggests the -conspirator in the robberies. N.T. 2.7.2013 at 115argument in which he raised questions about the mysterious passenger in the car with the defendant when he was arrested. tatements were also reasonable inferences based on the record. Evidence was introduced that Wongas was riding in the vehicle with the defendant when they were stopped by police. Further, Wongas -conspirator. N.T. 2.6.2013 at 194. Trial Court Opinion, 11/13/13, at 20. record or reasonable inferences therefrom, a prosecutor is permitted to respond to defense evidence and engage in oratorica Commonwealth v. Culver, 51 A.3d 866, 878 (Pa. Super. 2012) (internal citations omitted). In fact, this Court has stated: The Commonwealth is entitled to comment during closing arguments on matters that might otherwise be objectionable or even outright misconduct, where such comments constitute fair response to matters raised by the defense, or where they are merely responsive to actual evidence admitted during a trial. Id., 51 A.3d at 876. -17- J-S26028-14 o the reference made by defense counsel to the role that Terrance Wongas played in the 2 As such, we conclude that the trial court did not err in overruling the objection made by de In his final claim, Appellant argues that the trial court erred by denying his motion to suppress physical evidence obtained pursuant to execution of the search warrant, specifically the gun-lighter, because the search was the detention of appellant because he fit the description of a robbery suspect, they did not have the right to arrest him because they did not have probable Id. at 42. Appellant contends that while the search of the vehicle was conducted with a warrant, had police not illegally arrested Appellant and obtained photo identifications of him, police never would have obtained sufficient evidence to establish the probable cause necessary for the issuance of a warrant. Id. at 47-48. 2 the facts when she referred to the car as belonging to Appellant. Simply because the vehicle w preclude the conclusion that Appellant had access to it and was operating the vehicle at the time the crime was committed. It has no legal impact on the outcome of this case. -18- J-S26028-14 standard: Our standard of review of a denial of suppression is whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts. Commonwealth v. McRae, 5 A.3d 425, 429 (Pa. Super. 2010). In Commonwelth v. Jones, 988 A.2d 649 (Pa. 2010), our Supreme Court addressed the requirements for a valid search warrant: Article I, Section 8 and the Fourth Amendment each require that search warrants be supported by probable cause. -pin that has been developed to determine whether it is appropriate to issue a search warrant is the test of probable Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 899 (1991) (quoting Commonwealth v. Miller, 513 Pa. and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352, 357 (1972). In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court determining whether a request for Fourth Amendment is supported Commonwealth v. Gray, 509 Pa. this Court adopted the totality of -19- a search warrant under the by probable cause. In 476, 503 A.2d 921 (1986), the circumstances test for J-S26028-14 purposes of making and reviewing probable cause determinations under Article I, Section 8. In describing this test, we stated: set forth by the United States Supreme Court in Gates, the task of an issuing authority is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.... It is the duty of a court reviewing nation to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to and must view the information offered to establish probable cause in a common-sense, non-technical manner. *** [Further,] a reviewing court [is] not to conduct a de novo determination, but [is] simply to determine whether or not there is substantial evidence in the record supporting the decision to issue the warrant. Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537 38, 540 (2001). Id. probable cause, appellate review is confined to the four corners of the Commonwealth v. Galvin, 985 A.2d 783, 796 (Pa. 2009). -20- J-S26028-14 In the case before us, the affidavit of probable cause in support of the search warrant provides as follows: Between 12/6/08 and 2/6/09, 17 gunpoint robberies of parking lots and garages have occurred in the center city area , gray hoody. All of the robberies were committed at point of silver handgun. In addition, surveillance videos from the robberies showed two vehicles being used in the commission of these incidents; a silver/gray Dodge Durango and a white Chrysler sedan. On 2/11/09 at approximately 6:20pm, 9th District police spotted a silver Dodge Durango occupied by two black males operating south bound at 700 N. 15th St. Officers stopped the vehicle at 500 N. 15th St. and conducted a vehicle investigation. Officers observed inside the rear seat area was a white hoody, a gray hoody and bandanas. Upon further investigation, one of the males fit the description of the #2 male including the gap in the front teeth and the male passenger fit the description that was give A check of BMV shows the Dodge Durango, PA#GYF-3276 is registered to Khei TERRY 5316 Horrocks St. A check of bmv shows that a second vehicle, a Chrysler sedan, white in color, PA#GVK-0969 is also registered to Kheia Terry 5316 Horrocks St. The male #2 gave his address as 5316 Horrock St. Police went to the area of 5316 Horrocks St and spotted the white Chrysler. The affiant requests warrants to search the Dodge Durango, Chrysler sedan and the residence 5316 Horrocks St to locate proceeds of the crime, weapons, clothing and additional evidence from the 17 robberies. -21- J-S26028-14 #140911, 2/11/09, at 1.3 Reviewing the affidavit on its four corners, we conclude that the issuing authority had probable cause to issue the search warrant. The affidavit included a description of the robberies and the suspects and outlined specific factors supporting a finding of probable cause that Appellant was involved in those robberies. Considering the totality of circumstances, the information provided in the affidavit would permit the issuing authority - bability that contraband or evidence of a crime will be found in the places sought to be searched. Jones, 988 A.2d at 655. Going beyond the four corners of the affidavit, however, Appellant argues that had police not illegally arrested Appellant and obtained photo identifications of him, police never would have obtained sufficient evidence to establish the probable cause necessary for the issuance of a warrant. that an illegal arrest occurred, which required that evidence obtained pursuant to execution of the search warrant be suppressed, lacks merit. 3 The affidavit reflects various inconsistencies in the spelling of relevant proper nouns. -22- J-S26028-14 The information used in the affidavit of probable cause was obtained as a result of the flash information issued by the police department and from testified at the suppression hearing that officers in his department were provided with an information bulletin consisting of approximately nine pages that outlined the robberies that had taken place, the location of the robberies, descriptions of the suspects, descriptions of the vehicles used, and photographs. N.T., 11/3/11, at 11-17. Officer Guerico testified that he received this information 11, 2009. Id. at 8, 11. Based on the flash, Officer Guerico testified that he stopped other silver or gray Dodge Durangos for purposes of an investigatory stop. Id. at 37. On the date in question, Officer Guerico and of the flash information. Id. at 17-19. suspicion to believe that the occupants were involved in criminal activity. Commonwealth v. Sands, 887 A.2d 261, 269 (Pa. Super. 2005). A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. This standard, less stringent than probable cause, is commonly known as reasonable suspicion. In order to determine whether the police officer had reasonable suspicion, the totality of the -23- Our J-S26028-14 circumstances must be considered. In making this reasonable inferences [the police officer] is entitled to draw from circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer. Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004) (internal citations omitted). Based on the flash information that Officer Guerico received, he had Appellant concedes that the officers had justification for an investigative detention of Appellant because he met the description of the suspect in the Appellant was valid. Officer Guerico further testified that upon approaching the vehicle, it became apparent that the passengers closely matched the description of the suspects in the bulletin. N.T., 11/3/11, at 20-21. Officer Guerico stated the fact that the driver had a gap in his front teeth caught his attention because that characteristic was specifically outlined in the description of one of the suspects in the bulletin. Id. at 21. Furthermore, Officer Guerico testified to observing various articles of clothing in the back seat of the vehicle that raised his level of suspicion. Id. at 49-52. -24- Because the initial stop was J-S26028-14 lawful, these factors were properly relied upon in developing the affidavit of probable cause for the search warrant. Appellant, however, maintains that his alleged unlawful subsequent custodial detention served as the basis of the affidavit and resulted in recovery of evidence that was fruit of the poisonous tree. It appears from testimony during the suppression hearing that after Officers approached the vehicle, the two passengers were placed in police vehicles and taken to the police station for further questioning. Appellant maintains such action was, in fact, an unlawful arrest and required suppression of any evidence obtained as a result of executing the search warrant. Whether App irrelevant to the determination of whether the search warrant was supported by probable cause. As noted, the information constituting probable cause and serving as the basis for the search warrant was obtained through the information bulletin and the lawful investigatory stop of Appellant. Thus, we need not, and indeed cannot, consider whether the subsequent custodial the police did not use the photo identification of Appellant, allegedly obtained as a result of an illegal arrest, as the basis for the affidavit of probable cause. As noted, information obtained from the lawful investigative stop served as the basis for the affidavit of probable cause. As a result, we conclude that -25- J-S26028-14 search warrant should be suppressed lacks merit. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2014 -26-

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