J-S27025-15

J-S27026-15

2015 PA Super 266

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SALEEM SHABEZZ

Appellee Nos. 1639 EDA 2014 AND 

1702 EDA 2014

Appeal from the Orders Entered April 2, 2014 and May 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at Nos: CP-51-CR-0012538-2013 and CP-51-CR-0015450-

2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD, JJ.*

OPINION BY STABILE, J.: FILED DECEMBER 21, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the trial 

court’s April 2, 2014 and May 15, 2014 orders suppressing evidence. We 

affirm. 

We begin with a review of the pertinent facts, as gleaned from the 

transcript of the suppression hearing.1 Sergeant Michael Cerutti (“Sergeant 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

 In reviewing a trial court’s suppression decision, we must confine our 

review to the transcript of the suppression hearing. In re L.J., 79 A.3d 

1073, 1082-85 (Pa. 2014). Given Appellee’s success here, the case did not 

proceed to trial and the suppression hearing transcript is the only one 

available. 
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Cerutti”), a member of the narcotics enforcement team of the 15th District 

police department in the City of Philadelphia, testified that on June 1, 2013, 

he was overseeing a surveillance operation at the McDonald’s restaurant at 

the intersection of Cottman and Roosevelt Boulevards in the City of 

Philadelphia. N.T. Hearing, 4/2/14, at 7-9. Surveillance commenced at 

7:30 or 7:40 p.m. Id. at 11. Sergeant Cerutti has been involved in 

“hundreds of arrests” at that location and it has been a hot spot for at least 

three years. Id. at 9-10. He testified that participants in the transaction 

would commonly meet at the McDonald’s and then travel to a nearby 7-11 to

complete the exchange. Id. at 9-10. Sergeant Cerutti did not personally 

observe the transaction at issue in this case, but received reports from 

members of his team who were on the scene and gave the order to stop 

Appellee, Saleem Shabezz, and the other involved parties. Id. at 17-18. 

Officer Steven Burgoon (“Officer Burgoon”) testified that he observed 

Appellee engage in a drug transaction in the 7-11 parking lot. Officer 

Burgoon confirmed Sergeant Cerutti’s testimony that many drug 

transactions occur at the location involved in this case. Id. at 21. On the 

evening in question, a member of the surveillance team informed Officer 

Burgoon that a tan Nissan was leaving the McDondald’s. Id. at 22. Officer 

Burgoon and his partner, Officer James Wade (“Officer Wade”), followed the 

Nissan in their unmarked vehicle. Id. The Nissan drove from McDonald’s to 

the 7-11 parking lot one block away. Id. at 22. Shortly thereafter, Officer 
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Burgoon observed a red Acura arrive in the 7-11 parking lot and park 

several spaces from the Nissan. Id. From his vantage point 45 feet away, 

Officer Burgoon observed Appellee emerge from the passenger side of the 

Acura, walk to the passenger side of the Nissan, open the passenger door, 

and engage in a hand-to-hand drug transaction with the Nissan’s driver. Id.

at 22-23. The suspected transaction occurred shortly after 8:00 p.m. Id. at 

39, 48. 

The trial court asked Officer Burgoon to explain why he believed he

saw a hand-to-hand drug transaction. Id. at 22. Officer Burgoon explained: 

I saw [Appellee] reach in towards the driver, did like a 

cupping act. I did not see any USC [United States Currency] 

being exchanged, but I saw what I believed was a transaction 

because the hand movement was like a dropping—picking up 

and dropping action from [Appellee]. 

THE COURT: Did you see what was dropped? 

[Officer Burgoon]: No. It was small objects it looked like. 

Id. at 23. A written “PARS” report,2 prepared shortly after the incident, 

stated only that Appellee opened the passenger door of the Nissan, leaned 

in, and had a conversation with the driver. Id. at 39. Officer Apostolu 

prepared the report based in part on a briefing from Officer Burgoon. Id. at 

____________________________________________

2

 The record does not define this acronym, but our understanding is that it 

refers to the Philadelphia Police Department arrest report. 
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40. Officer Burgoon did not mention any discrepancy to Officer Apostolu3

when he first reviewed the report. Id. at 44. 

After the transaction, Appellee proceeded back to the Acura, and both 

vehicles began to depart from the 7-11 parking lot. Id. at 22. Officer 

Burgoon positioned his vehicle to block the parking lot’s exit. Id. Sergeant 

Cerutti arrived and positioned his vehicle so that the Acura and the Nissan 

could not back up. Id. at 26. Officer Burgoon’s vehicle was “almost nose to 

nose” with the Acura. Id. at 26, 46. Appellee immediately fled from the 

passenger side of the Acura and was apprehended on foot by Officer 

Apostolu, who arrested him and conducted a pat-down search. Id. Officer 

Apostolu retrieved a baggie of marijuana and $1,800.00 in cash from 

Appellee’s person. Id. The remaining vehicle occupants were ordered out 

and handcuffed. Id. at 47, 49-50. 

From the front passenger-side floor of the Acura, police recovered a 

bag containing packaged marijuana, packaging materials and a scale. Id. at 

30-31, 51. A bag recovered from the backseat contained marijuana and 

Adderall. Id. at 32, 52. A Smith and Wesson nine-millimeter handgun—

later determined to be stolen—was recovered from the glove box. Id. at 29. 

A clear baggie with marijuana was recovered from the center console. Id.

____________________________________________

3

 Officer Apostolu did not testify, and his first name is not evident in the 

record. 
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at 51. The Acura belonged to the driver’s mother. Id. at 33-34. A third 

individual—a juvenile—was in the Acura’s back seat. Id. at 34. 

After his arrest, the Commonwealth charged Appellee with possession 

of a controlled substance (marijuana), possession with intent to deliver a 

controlled substance (marijuana), conspiracy, unlawful possession of a 

firearm, and possession of an instrument of crime at docket number CP-51-

CR-0012538-2013.4 In connection with the stolen handgun recovered from 

the Acura’s glove box, the Commonwealth also charged Appellee with 

robbery, theft by unlawful taking, receiving stolen property, conspiracy, 

unlawful possession of firearms, assault, recklessly endangering another 

person, and terroristic threats at docket number CP-51-CR0015450-2013.5 

By order of April 2, 2014, Judge Paula Patrick granted Appellee’s motion to 

suppress evidence at number 12538. The same evidence is at issue in 

number 15450, and the Commonwealth conceded that it was collaterally 

estopped from challenging Appellee’s motion to suppress at number 15450. 

By order of May 15, 2014, Judge Earl W. Trent, Jr. entered an order granting 

Appellee’s motion to suppress at number 15450. We have sua sponte

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4

 35 P.S. § 780-113(16) and (30), 18 Pa.C.S.A. §§ 903, 6105, 6106 and 

907, respectively. 

5

 18 Pa.C.S.A. §§ 3701, 3921, 3925, 903, 6105, 6106, 2701, 2705, and 

2706, respectively. 
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consolidated these cases for appeal, as they involve precisely the same facts 

and legal issues.6 

The Commonwealth filed timely notices of appeal in both cases 

pursuant to Pa.R.A.P. 311(d). Neither trial judge ordered the 

Commonwealth to file a concise statement of errors pursuant to Pa.R.A.P. 

1925(b). The Commonwealth raises two issues for our review: 

I. Did the lower court err in suppressing drugs, a gun, 

and other evidence found in a car where [Appellee] 

failed to prove a reasonable expectation of privacy in 

the car? 

II. Did the lower court err in suppressing drugs, a gun, 

and other evidence found in a car where police 

observed conduct that resembled prior drug 

transactions within their experience and [Appellee] 

fled when police stopped the car? 

Commonwealth’s Brief at 4. 

We review an order granting a defendant’s suppression motion as 

follows: 

This Court is bound by those of the suppression court’s 

factual findings which find support in the record, but we are not 

bound by the court’s conclusions of law. When the suppression

court’s specific factual findings are unannounced, or there is a 

gap in the findings, the appellate court should consider only the 

evidence of the prevailing suppression party (here, appellee) and 

the evidence of the other party (here, the prosecution) that, 

when read in the context of the entire record, remains 

uncontradicted. 

____________________________________________

6

 See Pa.R.A.P. 513, governing consolidation of multiple appeals. 
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Commonwealth v. Millner, 888 A.2d 680, 685 (Pa. 2005). The 

suppression court’s findings of fact are dependent upon its credibility 

determinations. L.J., 79 A.3d at 1085. “[O]ur standard of review is highly 

deferential with respect to the suppression court’s factual findings and 

credibility determinations.” Id. at 1080 n.6. 

In its first argument, the Commonwealth asserts that Appellee had no 

reasonable expectation of privacy in the Acura and therefore no standing to 

seek suppression of any evidence recovered from the vehicle. In its second 

argument, the Commonwealth asserts that the record does not support the 

trial court’s findings of fact. We find it useful to address these issues in 

reverse order so that we can conduct our legal analysis after a thorough 

assessment of the record and the trial court’s findings. 

At the conclusion of the suppression hearing, the trial court granted 

Appellee’s motion to suppress because it disbelieved the Commonwealth’s 

witnesses:7 

Officer Burgoon testified to things which I didn’t believe. I 

thought it was hard for me to believe certain things about him 

testifying with 45 feet away with a naked eye that he was able to 

see, quote, this transaction, and I asked him about that. He 

then began to kind of sort of explain. That’s not sufficient under 

the law, but I had a difficult time in believing some of the things 

he said. 

N.T. Hearing, 4/24/14, at 68. 

____________________________________________

7

 The hearing addressed the joint motion of Appellee and his co-defendant, 

the driver of the Acura. 
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In her findings of fact, the trial court noted that the PARS report did 

not describe a hand-to-hand drug transaction between Appellee and the 

Nissan driver, merely a conversation. Trial Court Opinion, 8/13/14, Findings 

of Fact ¶ 9. The court found Officer Burgoon’s account of the hand-to-hand 

transaction not credible. Id. Officer Burgoon made the observations “from 

nearly 45 feet away at around 7:30 p.m. without the aid of any binoculars 

or night vision. Id. at Findings of Fact ¶ 14 (emphasis in original). “This 

Court had a difficult time believing that the officer was able to make out 

such observations in the dark of night nearly 50 feet from where the 

defendants were located.” Id. at Findings of Fact ¶ 15. “The [PARS] report 

for this incident does not indicate that Officer Burgoon ever witnessed any 

cupping of the hands or a hand to hand transaction take place in the parking 

lot.” Id. at Findings of Fact ¶ 23. “It states that [Appellee] opened the 

Passenger door and leaned in and had a brief conversation with [the Nissan’s 

driver].” Id. “Further, Officer Burgoon did not tell [Sergeant Cerutti] that 

he observed a cupping motion or anything like that in his report to his 

supervisor.” Id. 

The trial court thus chose to credit the facts as stated in the PARS 

report. Id. at Findings of Fact ¶ 24. The court did not credit Officer 

Burgoon’s observations of the alleged hand-to-hand drug transaction, in part 

because his view was “obscured.” Id. In summary: 

[N]othing of significance was ever really observed. The 

officers simply witnessed people talking in a parking lot near 
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their vehicles. This Court did not believe that any officer could 

have observed any alleged hand to hand transaction take place 

from nearly fifty feet away, yet alone from that vantage point at 

night. It would be next to impossible to see such movement 

from that distance at night without the aid of binoculars or night 

vision. In addition, the PARS did not state that the officers 

witnessed any such thing. This Court did find that the officers 

were conducting surveillance. This Court also determined that 

the officers had observed the suspects talking in a parking lot. 

But those are the only facts which the Commonwealth clearly 

established at the hearing. 

Id. at 14. 

The Commonwealth argues the record does not support the trial 

court’s finding that Officer Burgoon made his observations in the dark of 

night. As set forth above, the suppression transcript indicates that this 

incident occurred shortly after 8:00 p.m. on June 1, 2013. The trial court 

discredited Officer Burgoon’s testimony in part because it did not believe he 

could observe a drug transaction from 50 feet away in the “dark of night” 

without binoculars or night vision. Since this incident occurred around 8:00 

p.m. on June 1, we agree with the Commonwealth that the record does not 

support the trial court’s finding that the incident occurred in the “dark of 

night.”8 

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8

 The record contains no evidence of whether the sky was cloudless, 

severely overcast, or anything in between. The record also does not support 

the trial court’s finding that the arrest occurred at 7:30 p.m. As set forth in 

our summary of the suppression transcript, Sergeant Cerutti testified that 

the surveillance commenced at 7:30 p.m. and Officer Burgoon testified that 

the arrest occurred shortly after 8:00 p.m. Regardless of this discrepancy, 

(Footnote Continued Next Page)
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Nonetheless, the “dark of night” finding was not the trial court’s only 

basis for disbelieving Officer Burgoon’s account of the hand-to-hand 

transaction. The trial court also relied on the PARS report. The PARS report 

prepared shortly after the incident described conversation between Appellee 

and the driver of the Nissan but not a hand-to-hand transaction. Thus, the 

record contains evidence supporting the trial court’s finding that Appellee 

and the Nissan driver engaged only in conversation. Pursuant to the 

applicable standard of review, that finding is binding on this Court. 

The Commonwealth argues that police were justified in stopping the 

vehicles and arresting Appellee even if Officer Burgoon observed only a 

conversation between Appellee and the Nissan driver. The Commonwealth 

relies on the procession from McDonald’s to the 7-11 in accord with the 

common practice of drug transactions at that location, the brief conversation 

between Appellee and the Nissan driver, both cars moving to depart from 

the 7-11 parking lot with no vehicle occupant having entered the store, and 

Appellee’s immediate flight upon the appearance of the police. The 

Commonwealth argues that police had at least reasonable suspicion to stop 

the Acura and Nissan as they were leaving the 7-11 parking lot and probable 

cause to arrest Appellee in light of his flight from a lawful detention. 

Our courts recognize three levels of police interaction. 

(Footnote Continued) _______________________

the record does not support a finding that the arrest occurred in the dark of 

night. 
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The first of these is a ‘mere encounter’ (or request for 

information) which need not be supported by any level of 

suspicion, but carries no official compulsion to stop or respond. 

The second, an ‘investigative detention’ must be supported by 

reasonable suspicion; it subjects a suspect to a stop and period 

of detention, but does not involve such coercive conditions as to 

constitute the functional equivalent of arrest. Finally, an arrest 

or ‘custodial detention’ must be supported by probable cause

Com. v. Lyles, 54 A.3d 76, 79 (Pa. Super. 2012) affirmed, 97 A.3d 298 (Pa. 

2014). 

The Commonwealth argues that even if we conclude the record 

supports the trial court’s findings, the stop of the vehicles was an 

investigative detention supported by reasonable suspicion.9 We discern the 

existence of reasonable suspicion according to the following strictures: 

Regarding the stop, a police officer may, short of an arrest, 

conduct an investigative detention if he has a reasonable 

suspicion, based upon specific and articulable facts, that 

criminality is afoot. The fundamental inquiry is an objective one, 

namely, whether the facts available to the officer at the moment 

of the [intrusion] warrant a man of reasonable caution in the 

belief that the action taken was appropriate. This assessment, 

like that applicable to the determination of probable cause, 

requires an evaluation of the totality of the circumstances, with a

lesser showing needed to demonstrate reasonable suspicion in 

terms of both quantity or content and reliability. 

Com. v. Zhahir, 751 A.2d 1153, 1156-57 (Pa. 2000) (internal citations and 

quotation marks omitted). “In conducting a reasonable suspicion inquiry, a 

suppression court is required to ‘afford due weight to the specific, reasonable 

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9

 The Commonwealth also argues it had probable cause to support the 

warrantless arrests. Commonwealth’s Brief at 18-19. In light of our 

disposition of this case, we need not address that issue. 
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inferences drawn from the facts in light of the officer’s experience.’” 

Commonwealth v. Carter, 105 A.3d 765, 775 (Pa. Super. 2014) (en 

banc). 

We cannot conclude that the facts before us, as found by the trial 

court, evince reasonable suspicion in support of the vehicle stop. The 

evidence deemed credible by the suppression court indicates that two 

vehicles proceeded from a McDonald’s parking lot to a 7-11 parking lot

where Appellee stepped out of one vehicle and conversed with the driver of 

the other. The suppression court did not credit testimony indicating that 

that Appellee did anything more than engage in conversation. We are 

cognizant that Sergeant Cerutti testified to making hundreds of arrests in 

the vicinity of the McDonald’s and 7-11, which had been a hot spot for three 

years. N.T. Hearing, 4/2/14, at 9-10. The suppression court apparently did 

not credit Sergeant Cerutti’s testimony, as the court noted that the PARS 

report contained no mention of a pattern of narcotics activity at that 

location. Trial Court Opinion, 8/13/14, Findings of Fact ¶ 36. Rather, the 

suppression court found as fact that police acted based on a conversation in 

a parking lot and nothing more. Id. at ¶ 37. The court disbelieved much of 

the Commonwealth’s evidence because several officers testified to facts that 

were omitted from and/or inconsistent with the contemporaneous arrest 

report. We must be highly deferential to the suppression court’s credibility 

determinations. L.J., 79 A.3d at 1080 n.6.
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Under these circumstances, we cannot conclude that the police had 

reasonable suspicion to support an investigative detention of the Nissan and 

Acura and their occupants. The United States Supreme Court has held that 

a vehicle stop constitutes a seizure of all persons inside the vehicle. 

Brendlin v. California, 551 U.S. 249, 251 (2007). Thus, all occupants of 

the vehicle have standing to challenge the constitutionality of the stop. Id. 

Pursuant to Pennsylvania law, any possessions Appellee abandoned in the 

Acura are subject to suppression because police lacked reasonable suspicion 

to detain Appellee. Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996). 

Specifically, the Matos Court held that where police lack at least reasonable 

suspicion to detain a suspect, any property that suspect discards during 

flight is subject to suppression. Id. 

Applying the foregoing law to the record, in light of the suppression 

court’s findings of fact and credibility determinations, is a simple matter. 

The Commonwealth did not produce enough credible evidence to support a 

conclusion that police had reasonable suspicion to detain the vehicle in which 

Appellee was a passenger.10 As such, the trial court did not err in 

suppressing all of the evidence retrieved from the vehicle and from 

Appellee’s person after his arrest. We therefore affirm the trial court’s 

order. 

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10

 Given our analysis, we need not discern whether Appellee had a 

reasonable expectation of privacy in the vehicle. 
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Order affirmed. 

P.J.E. Ford Elliott files a concurring statement in which Judge Stabile 

and Justice Fitzgerald join.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2015