An accomplice’s and his girlfriend’s word to one officer can make up good probable cause for another officer to make a warrantless arrest. (And apparently the enforcement of plea agreements are excepted from the time constraints of the PCRA.)

Comm. v. Brogdon, 2019 PA Super 297 (Oct. 3, 2019)

Out of Philadelphia County.  Brogdon was convicted at a bench trial of violations of the Uniform Firearms Act (i.e. person not to possess and carrying without a license), and he complained on appeal that the trial court should’ve granted his suppression motion.  

The basis of Brogdon’s suppression was that the police officer who arrested him did not himself have independent reasonable suspicion or probable cause sufficient to detain or arrest, and any information the officer may have relied upon to make the arrest was not “reasonably trustworthy evidence” to support Brogdon’s involvement in a robbery of the day before.

Briefly, the gist of the underlying facts relevant for suppression were these.  The victim was robbed at gunpoint by two males.  The victim was interviewed shortly after the robbery, and when police transported him back to the scene he saw one of the males who he identified for the officers.  That male was Reginald Carroll. Carroll was interviewed by the police and told them that a male by the nickname of “Fifty” was involved in the robbery, and he was about 6’5” tall.  Nearly 12 hours later, Carroll’s girlfriend comes to the police station of her own accord and reported that “three males” were involved in the robbery and the one who pushed the victim off of his bike went by the nickname “Fifty.”

The investigating officers provided this information to other officers, and based upon the information provided another officer had an idea who was being described: the appellant, Linzie Brogdon.  Later on, a report went out that Brogdon was spotted near the scene of the robbery, and the officer who was familiar with him stopped him on his bike and things escalated between the two from there, resulting in Brogdon resisting arrest and ultimately losing the firearm he was carrying on him in the scuffle.  It was this seizure and arrest that Brogdon challenged.

Before the Superior Court concluded that the stop and arrest were good, Brogdon conceded on appeal that if the officer investigating the robbery had probable cause to arrest Brogdon, then the arresting officer was permitted to make a warrantless arrest because he would’ve had the “collective knowledge” of the investigating officer.  Brogdon’s complaint, however, was with the trustworthiness of the information that made up the probable cause.  Namely, the probable cause was based on the word of the alleged accomplice and that accomplice’s girlfriend.  He argued that the two had a obvious “corrupt motive” to identify him as one of the robbers.

The Superior Court said the following in response:

   “Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most reasonable inference.”

*       *       *

“While the [police] must have a reasonable belief in the probability of criminal activity by the person to be arrested, the belief may rest solely in information supplied by another person where there is a ‘substantial basis’ for crediting that information.” [Citation omitted.]  Here, the police had a “substantial basis” for crediting the information provided by Ms. Gomez, whose trustworthiness as an identified civilian witness may be presumed, as well as the information provided by Mr. Carroll, an alleged accomplice of Appellant.

Thus, in sum, the word of an accomplice, coupled with that of the accomplice’s girlfriend, can support the basis for probable cause.  The arrest was accordingly proper.

Comm. v. Kerns, 2019 PA Super 298 (Oct. 4, 2019)

Out of Berks County.  This was a pro se appeal by Kerns, who had previously filed 16 PCRAs.  In this filing, which the Superior Court described as Kern’s “17th effort to obtain collateral relief”—a motion he styled as “Nunc Pro Tunc Motion to Open, and Vacate Sentence Due to Breach of Plea Agreement Pursuant to 42 Pa.C.S § 5505”—Kerns argued that his plea agreement made back in the early 2000s was breached since he’s subject to sex-offender registration.  He argued that sex-offender registration “was not an express term of his written or oral plea colloquies.”

The Superior Court addressed this argument on the merits.  Notwithstanding its acknowledgment that the PCRA is the sole means for obtaining collateral relief, the Superior Court unhinged itself from the the PCRA’s time restraints by stating “a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance.” The court cited a string cite of authorities supporting that proposition.  The court went on to hold, however, that Kerns wasn’t entitled to any relief on this reasoning:

When sex-offender registration statutes are in force and applicable to the offense(s) at issue, sex-offender registration is an implied term of the plea bargain; and this Court will not consider sex-offender registration as a breach of a plea agreement unless non-registration was made part of the plea deal.

Personal note: I don’t think it’s any coincidence that the Superior Court used the language “regularly treated” when describing the cases that had enforced plea agreements in a collateral context.  None of those cases seemingly “held” that enforcement of plea agreements in a collateral context may occur outside the PCRA. Such a holding, I believe, would conflict with the PCRA statute, which our legislature explicitly made the sole vehicle for obtaining collateral relief.  I argued an issue like this in my very first appeal to the Superior Court—which notably was shot down under the auspices of the PCRA for being untimely—so I appreciate the expansion of collateral-relief opportunities.  But I think, ultimately, the court has grafted a judicially made exception to the PCRA, which the language of that law simply doesn’t provide for.