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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KADIR JACKSON

Appellee No. 1898 EDA 2013

Appeal from the Order June 5

, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR

- 0001919

- 2011

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. *



### MEMORANDUM BY OTT, J.: FILED OCTOBER 09, 2014

The Commonwealth appeals from the order entered June 5, 2013, in

the Court of Common Pleas of Philadelphia County suppressing Kadir

Jackson’s statements to police officers. 1 

### The Commonwealth claims the

court erred by suppr essing Jackson’s confession on the ground that there

was no probable cause to arrest him. Based on the following, we affirm.

The trial court set forth the factual history as follows:

In the course of the investigation of the shooting death of

Richard Cu rry on November 17, 2010, Detective Holmes received

____________________________________________

* 

### Retired Senior Judge assigned to the Superior Court.

1 

### In compliance wi th Pennsylvania Rule of Appellate Procedure 311(d), the

Commonwealth certified in its July 1, 2013, notice of appeal that the trial

court’s order terminates or substantially handicaps its prosecution of this

case. See Pa.R.A.P. 311(d).

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a note from Detective Fetters that Curry’s girlfriend, Felicia, had

information about Jackson’s potential involvement in Curry’s

murder.... Detective Holmes spoke to Felicia, who told him that

Jackson had been having problems with Curry and that there

had been an ongoing dispute between two neighborhood groups

– 76 th 

### Avenue and Sharpnack Street. Felicia knew Jackson’s

family and was familiar with the individuals associated with the

two groups. She also st ated that she had seen Jackson rapping

in a YouTube video, the content of which was unclear on the

record. 2 

### Felicia also told Detective Holmes that she had heard

from friends of friends that Jackson was bragging about the

Curry shooting, but the context o f the bragging is unclear on the

record.

2 

### The content of the rap captured in the video may have

been about a shooting or may have been about the

ongoing conflict between 76 th 

### Avenue and Sharpnack

Street.

Based upon this information from Felicia and wi thout a

warrant, Detective Holmes went to Jackson’s home on November

22, 2010 to question him about the murder of Richard Curry.

Detective Holmes spoke with Jackson’s mother in the front door

area while other officers stayed in the alley behind the home.

Upon informing Jackson’s mother that he wished to speak with

Jackson, Jackson’s mother called Jackson, and Detective Holmes

spoke with Jackson by phone. Jackson told the detective that he

was at his girlfriend’s house and would speak with detectives in

t en minutes at a local Walgreens. Immediately after the phone

conversation with Detective Holmes, Jackson exited the house

from the back door. There was conflicting evidence as to

whether Jackson exited the house with another person. It is

unclear to thi s court whether Jackson was actually fleeing, as he

had lied to police about his whereabouts, but his exit from the

home could be seen either as an attempt to avoid speaking with

police or as his attempt to go to the Walgreens as arranged.

Jackson was det ained and handcuffed by officers and

subsequently transported to the homicide unit at approximately

1:00 p.m. Detective Holmes stated that he put Jackson in

custody because Jackson had lied about being at his girlfriend’s

house, he had attempted to flee f rom his home, and he was a

“person of interest” for the homicide.

Trial Court Opinion, 10/8/2013, 2

- 3 (footnote omitted).

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-

After Jackson was handcuffed, he was transported down to the police

station and was given his Miranda 2 

### warnings. Jackson originally denied any

involvement in the shooting, but eventually confessed to shooting Curry with

a 9 mm pistol, stating: “I heard that [Curry] was looking for me, and on my

way home I ran into him in the driveway of 76th Avenue. [Cu rry] said to

me, ‘Let me holla at you.’ [Curry] then pulled out a gun, and I pulled mine

and shot him. I ran across the street to the other driveway and went

home.’” N.T., 4/5/2013, at 91

- 92.

Jackson was charged with murder, criminal conspiracy, and ot her

related offenses. On November 29, 2012, he filed a pretrial motion to

suppress his statement made to police because it was “obtained illegally and

unconstitutionally and there was no knowing, intelligent and voluntary

waiver of [his] constitutional ri ght to counsel and his constitutional right to

remain silent and be free from self

- incrimination[.]” Jackson’s Pretrial

Motion to Suppress Statement, 11/29/2012, at 1. On April 5, 2013, the

court held a hearing on the matter. At that time, Jackson also argued the

police lacked probable cause to arrest him and, therefore, his statements to

police were inadmissible as the fruit of an illegal arrest. N.T., 4/5/2013, at

5

- 6. Following the hearing, the Commonwealth filed a responsive letter brief

on May 2, 2013.

____________________________________________

2 

### See Miranda v. A rizona , 384 U.S. 436 (1966).

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-

Subsequently, on June 5, 2013, the trial court entered an order, and

corresponding opinion, granting Jackson’s motion to suppress because it

found the police did not have probable cause to arrest him. 3 

### The

Commonwealth filed this timely appeal. 4



### In the Commonwealth’s sole issue, it claims the trial court erred by

suppressing Jackson’s confession. Commonwealth’s Brief at 11.

Specifically, the Commonwealth asserts probable cause did exist to support

Jackson’s arrest based on the following: (1) t he victim’s girlfriend, “Felicia,”

was a “reliable” informant who knew Jackson from the neighborhood and

gave police information linking Jackson to the murder, including a YouTube

video where Jackson “rapped” about his dispute with the victim, and Felicia

had heard from mutual friends that Jackson was observed bragging about

the killing; (2) when police went to Jackson’s home to interview him, he lied

about his whereabouts, stating that he was at his girlfriend’s house when he

was really in the basement of the house; and (3) Jackson fled the house,

running from the basement door into a back alley. Id. at 12

- 15. The

____________________________________________

3 

### On June 20, 2013, the court entered a second order, stating that while it

found Jackson’s statements at issue were voluntary, the confession was the

fruit of a poisonous tree.

4 

### The court did not order the Commonwealth to file a concise statement of

errors complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, it

filed a concise statement on July 1, 2013. On October 8, 2013, the trial

court issued an opinion under Pa.R.A .P. 1925(a), which was substantially

similar to its June 5, 2013, opinion.

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Commonwealth contends Jackson’s “ruse to avoid contact with the police

--

with regard to specific matter under investigation

-- was a compellin g sign of

his consciousness of guilt.” Id. at 15 (citations omitted). Moreover, it

states the court improperly minimized the probative value of the information

Felicia provided to police and erred by finding her unreliable. Id. at 17

- 19.

Lastly, the Co mmonwealth argues the court erred by failing to contribute

any evidentiary significance to Jackson’s alleged “flight” from the home

because one could not reasonably infer he was merely “hurrying along in

order to meet the police at Walgreens as arranged” a s the trial court opined

in its determination. Id. at 19. Based on the totality of the circumstances,

the Commonwealth concludes Jackson “had already demonstrated by his

conduct that he was intent on evading [the police], rather than deal with the

matter forthrightly[,]” and taking him into custody was necessary to arrive

“at the truth while he was available to face the consequences.” Id. at 20.

In reviewing an order granting a defendant’s motion to suppress

evidence,

[w]e are bound by that court’s factu al findings to the extent that

they are supported by the record, and we consider only the

evidence offered by the defendant, as well as any portion of the

Commonwealth’s evidence which remains uncontradicted, when

read in the context of the entire record. Our review of the legal

conclusions which have been drawn from such evidence,

however, is de novo , and, consequently, we are not bound by

the legal conclusions of the lower courts.

Commonwealth v. Busser , 56 A.3d 419, 421 (Pa. Super. 2012), quoting

Commo nwealth v. Wallace , 42 A.3d 1040, 1048 (Pa. 2012).

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In addition, “[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.

Elmobdy , 2003 PA Super 158, 823 A.2d 180, 183 (Pa. Super.

2003). The suppression court is also entitled “to believe all, part

or none of the evidence presented.” Commonwealth v.

Benton , 440 Pa. Super. 441, 655 A.2d 1030, 1032 (Pa. Super.

1995). Finally, at a suppression hear ing, the Commonwealth

has the burden of “establish[ing] by a preponderance of the

evidence that the evidence was properly obtained.”

Commonwealth v. Culp , 378 Pa. Super. 213, 548 A.2d 578,

581 (Pa. Super. 1988).

Commonwealth v. Galendez , 27 A.3d 1042, 10 46 (Pa. Super. 2011).

With respect to the existence of probable cause for an arrest, we are

guided by the following principles:

Probable cause to arrest exists when the facts and

circumstances within the police officer’s knowledge and of

which the office r has reasonably trustworthy information

are sufficient in themselves to warrant a person of

reasonable caution in the belief that an offense has been

committed by the person to be arrested. Probable cause

justifying a warrantless arrest is determined by t he totality

of the circumstances.

Commonwealth v. Williams , 2008 PA Super 6, 941 A.2d 14,

27 (Pa. Super. 2008) (internal citations and quotation marks

omitted).

. . . . It is the facts and circumstances within the personal

knowledge of the police office r that frames the determination of

the existence of probable cause. See

, e.g.

, Commonwealth v.

Lawson , 454 Pa. 23, 27, 309 A.2d 391, 394 (1973) (“Probable

cause exists if the facts and circumstances known to the officer

warrant a prudent man in believing that an offense has been

committed.”).

Galendez , 27 A.3d at 1046.

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After a thorough review of the record, the briefs of the parties, the

applicable law, and the well

- reasoned opinion of the Honorable Linda

Carpenter, we conclude the Commonwealth’s sole issue on appeal merits no

relief. The trial court opinion comprehensi vely discusses and properly

disposes of the question presented. See Trial Court Opinion, 10/8/2013, at

4

- 8 (finding the police lacked probable cause based on the following: (1)

with respect to the Commonwealth’s allegation regarding Felicia’s

statements to police that Jackson had been bragging to people in the

neighborhood that he had murdered the victim, this contention was not

supported by the record as Detective Holmes testified Felicia informed him

that “[Jackson] was in the area bragging about the sh ooting of Mr. Ricky

Curry,” 5 

### but to whom Jackson was bragging was unclear, and the detective’s

testimony does not indicate if Jackson stated he was involved in the shooting

or merely talking about the incident; (2) the police lacked sufficient objective

fa cts and independent corroboration where (a) the specificity of Felicia’s

information was insufficient as it did not reflect a special familiarity with

Jackson’s affairs because the video was on a public website and the rivalry

between Jackson’s and the vic tim’s neighborhood groups was likely known

by community members, (b) Felicia’s background information was not

provided to the court nor did the Commonwealth present evidence as to how

____________________________________________

5 

### N.T., 4/5/2013, at 38.

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Felicia came upon this information, (c) the Commonwealth did not introdu ce

the YouTube video or any testimony that a police officer or detective saw the

video, and (d) there was no police follow

- up on Felicia’s information about

Jackson’s bragging, as to whom Jackson had been bragging or as to the

specific content of the bragg ing; (3) while Jackson did lie about his

whereabouts to police which is indicative of consciousness of guilt, there was

inconclusive evidence of flight because it was unclear whether he was

actually attempting to flee from police; and (4) the court was not presented

with any other factors to consider along with the perceived flight, other than

Felicia’s uncorroborated information).

We agree with the court’s analysis and we reiterate the sentiment that

we “ are bound by that court’s factual findings to the e xtent that they are

supported by the record.” Busser , 56 A.3d at 421. Here, the record

substantiates the trial court’s findings, particularly where Detective Holmes

testified that he had a conversation with Felicia regarding the acrimonious

relationship between Jackson and the defendant, but he did not formally

interview her. N.T., 4/5/2013, at 36. Moreover, other than stating that

Felicia told him the two men had an ongoing dispute and that Jackson was in

the area “bragging about the shooting,” Detecti ve Holmes did not testify that

Felicia provided him with any details regarding Jackson’s involvement in the

shooting. Id. at 38. As such, there was no demonstrably reliable

information that Jackson committed the murder.

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Furthermore, the record indicates that Detective Holmes went to

“make contact” with Jackson because “based on information [he] received

from the decedent’s girlfriend, [he] wasn’t going to just take that as a

whole. [He] just wanted to make contact with Mr. Jackson to see was there

a prob lem and did he know anything about this incident.” Id. at 38

- 39.

After the detective arranged to meet with Jackson at another location to

question him, Jackson was observed “exit[ing] the rear door [of his home] in

haste.” Id. at 13. As found by the tr ial court, there was inconclusive

evidence to establish whether Jackson had absconded, or whether he was

going to meet the police at the designated location. Based on these facts

and circumstances, the police only had a falsehood from Jackson with

respect to his actual whereabouts. Accordingly, one cannot reasonably infer

there was sufficient information to warrant a belief that an offense had been

committed by Jackson, supporting probable cause for his arrest. Therefore,

because we conclude the trial co urt, in its opinion, thoroughly discussed and

properly disposed of the only issue raised by the Commonwealth on appeal,

we rest on its well

- reasoned basis.

Order affirmed.

Judge Shogan joins this memorandum.

Judge Platt files a dissenting memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/2014Circulated 09/17/2014 10:38 AMCirculated 09/17/2014 10:38 AMCirculated 09/17/2014 10:38 AMCirculated 09/17/2014 10:38 AM