Com. v. Swinton, B. (memorandum)

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J-S09007-21 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. BRUCE SWINTON Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 299 EDA 2020 Appeal from the Judgment of Sentence Entered January 6, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000695-2019 BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 16, 2021 Appellant, Bruce Swinton, appeals from the judgment of sentence entered on January 6, 2020. We affirm. Appellant was arrested and charged with possession of a firearm by a prohibited person, firearms not to be carried without a license, and carrying a firearm on the public streets of Philadelphia.1 Prior to trial, Appellant filed a suppression motion and (among other things) argued that all of the evidence against him must be suppressed because, “before searching [Appellant’s] . . . person[, the] police lacked probable cause to search” him. Appellant’s Suppression Motion, 5/20/19, at 2. ____________________________________________ 1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively. J-S09007-21 On August 6, 2019, the trial court held a hearing on Appellant’s motion. As the trial court ably explained, the following evidence was produced at the hearing: Philadelphia Police Officer Fred MacConnell testified to the following at the evidentiary hearing on Appellant’s suppression motion: On August 23, 2018, at approximately 10:10 p.m., in response to numerous complaints about the illegal sales of narcotics, the officer set up surveillance at 4901 North Fifth Street, a “high narcotics location” in Philadelphia. At the time, Officer MacConnell had been a Philadelphia Police officer for nearly fourteen years and had conducted “hundreds” of surveillance operations. The property located at 4901 North Fifth Street is a “Chinese store.” Officer MacConnell testified that the police “received numerous complaints for [narcotics] sales” around and inside the store. The store is small with no tables inside for customers to sit and eat. It has large windows, which one can see through. Officer MacConnell testified, “You can see anybody in there.” Shortly after he set up the surveillance, the officer observed an unknown Black male sitting on the steps at the location. At approximately 10:15 p.m., Officer MacConnell saw Appellant and another male, who was later identified as Javier Hicks, approach the male sitting on the steps. The three men engaged in a brief conversation and then walked inside the store. Officer McConnell was less than fifteen feet from Appellant and the other men inside the store. The officer saw Appellant and Mr. Hicks each hand an unknown amount of United States currency to the unidentified male. The male then “reached into his pants pocket, removed small objects, and handed them” to Appellant and Mr. Hicks, both of whom exited the store. In consideration of his nearly fourteen years of experience, his observations of Appellant’s conduct, and his knowledge of the area in which the hand-to-hand transaction occurred, -2- J-S09007-21 Officer MacConnell “believed a narcotics transaction had just taken place.” Therefore, the officer requested backup officers to stop Appellant and Mr. Hicks. Police Officer MacConnell further testified that Officer Henry stopped Appellant in the 500 block of West Ruscomb Street and recovered “a silver Taurus .357 revolver . . . loaded with six live rounds.” Also recovered from Appellant was one clear plastic jar containing a green leafy substance, which tested positive for marijuana. Appellant testified at the evidentiary hearing and stated he went to the store with Mr. Hicks, who bought a cigar. Appellant claimed that he did not purchase marijuana from anyone at the store because he already had marijuana in his backpack. [The trial court] considered the testimony of the witnesses as well as the arguments of counsel and found Officer MacConnell’s testimony credible. The police had probable cause to arrest Appellant. Accordingly, the court denied the suppression motion. Appellant then stipulated to incorporate the testimony from the evidentiary hearing and proceeded to a bench trial. Trial Court Opinion, 11/16/20, at 1-3 (some capitalization omitted). Following the bench trial, the trial court found Appellant guilty of the charged crimes. On January 6, 2020, the trial court sentenced Appellant to serve an aggregate term of three-and-one-half to seven years in prison for his convictions. Appellant filed a timely notice of appeal from his judgment of sentence. He raises the following claim to this Court: Whether the police officer had probable cause to conduct a warrantless search of [Appellant’s] person during a custodial detention that violated his Fourth Amendment rights against unreasonable searches and seizures? A. [Appellant] was in a custodial detention and did not consent to the search. -3- J-S09007-21 B. The gun found on [Appellant’s] person was not in plain view. C. The police officer who searched [Appellant’s] person was not conducting a patdown search for his safety. D. There were no exigent circumstances to support the warrantless search. E. There was no warrantless search. probable cause to support the Appellant’s Brief at 6. We have reviewed the briefs of the parties, the relevant law, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable Roxanne E. Covington. We conclude that Appellant is not entitled to relief in this case, for the reasons expressed in Judge Covington’s November 16, 2020 opinion. Therefore, we affirm on the basis of Judge Covington’s thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Covington’s November 16, 2020 opinion. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/16/2021 -4- Circulated 09/03/2021 12:37 PM 0022_Opinion

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