Com. v. Palmer, A. ( 2015 )

J-A28020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALPHONSO PALMER
Appellant No. 3575 EDA 2014
Appeal from the Judgment of Sentence October 23, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003493-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 14, 2015
Appellant, Alphonso Palmer, appeals from the judgment of sentence
entered October 23, 2014, by the Honorable Giovanni O. Campbell, Court of
Common Pleas of Philadelphia County. We affirm.
The trial court summarized the facts of this case as follows.
On Ma[rch] 8, 2014 at 5:20 p.m.[, Philadelphia Police
Officer Daniel Loesch] was on routine patrol with his partner,
Officer Donahue[,] in the area of 2500 North Douglas Street. On
that date, he had been an officer for about 5 ½ years and had
approximately three years combined as an officer in the 22nd
District. Also by that date, Police Officer Loesch had made over
10 arrests for [narcotics] and at least 15 arrests for violent
offenses in that immediate area. Approximately three shootings
occurred in that immediate area at very close times [to] the
[Appellant’s] arrest, two of which occurred one block from where
the [Appellant] was arrested and another occurring another six
blocks away from the site of the [Appellant’s] arrest. Police
Officer Loesch testified that a radio call was transmitted for a
black male with a black hat, black jacket, and several persons in
a silver Pontiac involved in a shooting. [A]pproximately two
hours later, Police Officer Loesch observed the [Appellant] with
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several other males near a sliver Pontiac. He observed
specifically the [Appellant] being on the vehicle from half a block
away. Police [Officer] Loesch admits that the flash did not
exactly match the [Appellant]. Police Officer Loesch and his
partner drove to the streets without activating their sirens. As
the vehicle arrived, the [Appellant] immediately began to walk,
then jog, then run in full flight. As the [Appellant] ran, Police
Officer Loesch saw [him] reaching to his [waistband] several
times. The [Appellant] was ordered by the officers at least two
times to remove his hands from his waistband but he refused to
do so. After the [Appellant] was apprehended, he was
immediately searched and a handgun was recovered from his
person.
Trial Court Opinion, 3/23/15 at 2 (unnumbered).
Appellant was subsequently arrested and charged with carrying a
firearm without a license and carrying a firearm in public in Philadelphia.1
Prior to trial, Appellant filed a “Motion for Suppression,” which the
suppression court denied following a hearing. The trial court subsequently
convicted Appellant of both charges and sentenced him to 30 to 60 months’
incarceration, followed by five years’ probation. This timely appeal followed.
Initially, we note that Appellant has not included in his brief a
statement of questions involved in violation of Pa.R.A.P. 2116(a).
Ordinarily, this omission would result in waiver of the claims Appellant has
raised on appeal. See Pa.R.A.P. 2116(a) (“No question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”). However, because it is readily apparent from
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1
18 Pa.C.S.A. §§ 6106 and 6108, respectively. Appellant was additionally
charged with receiving stolen property, 18 Pa.C.S.A. § 3925(a), but the
Commonwealth later nolle prossed that charge prior to trial.
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Appellant’s brief that he is challenging the denial of his suppression motion
and this issue was properly preserved in Appellant’s Pa.R.A.P. 1925(b)
statement, we find no impediment to our review. We therefore decline to
find waiver in this instance, and proceed to address the merits of Appellant’s
claim.
We review the denial of a motion to suppress physical evidence as
follows.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e 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.
Further, [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. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted).
The suppression court’s factual findings are supported by the record.
We therefore proceed to examine the propriety of the suppression court’s
legal conclusions.
Appellant claims that the police officers did not have reasonable
suspicion of criminal activity to justify the police chase and that the firearm
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obtained from his person was therefore improperly seized. Specifically,
Appellant contends that his “slow jogging” from the police presence was not
the type of conduct that is intended to be considered flight and that there
was insufficient testimony for the suppression court to have concluded
Appellant was in a high crime area. Appellant’s Brief at 16, 22. We
disagree.
The Fourth Amendment of the United States Constitution guarantees,
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated....” U.S. Const. amend IV. Similarly, the Pennsylvania Constitution
assures citizens of our Commonwealth that “[t]he people shall be secure in
their persons, houses, papers and possessions from unreasonable searches
and seizures....” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a
governmental intrusion varies with the degree of privacy legitimately
expected and the nature of the governmental intrusion.” Commonwealth
v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted).
Interactions between law enforcement and citizens fall into one of the
following three categories.
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 a reasonable suspicion; it subjects a suspect
to a stop and a period of detention, but does not involve
such coercive conditions as to constitute the functional
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equivalent of an arrest. Finally, an arrest or “custodial
detention” must be supported by probable cause.
Id., at 845 (citation omitted).
When assessing whether an interaction escalates from a mere
encounter to an investigative detention, we employ the following standard.
To guide the crucial inquiry as to whether or not a seizure
has been effected, the United States Supreme Court has
devised an objective test entailing a determination of
whether, in view of all surrounding circumstances, a
reasonable person would have believed that he was free to
leave. In evaluating the circumstances, the focus is
directed toward whether, by means of physical force or
show of authority, the citizen-subject's movement has in
some way been restrained. In making this determination,
courts must apply the totality-of-the-circumstances
approach, with no single factor dictating the ultimate
conclusion as to whether a seizure has occurred.
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation
omitted), appeal denied, 65 A.3d 413 (Pa. 2013). Moreover, when this
Court evaluates whether an investigative detention is constitutional, the
following principles guide our decision.
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 circumstances must be considered. In
making this determination, we must give due weight to the
specific reasonable inferences the police officer is entitled
to draw from the facts in light of his experience. Also, the
totality of the 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
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facts, when taken together, may warrant further
investigation by the police officer.
Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (citing
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en
banc)).
At the suppression hearing, Officer Loesch testified that he had made
more than ten narcotics-related arrests and more than 15 arrests involving
violence in the general vicinity of Appellant’s arrest in the prior 3½ years.
See N.T., Suppression Hearing, 7/31/14 at 9. Officer Loesch further
testified that there were several shootings in that area in the two weeks
preceding Appellant’s arrest. See id., at 9-10. Although Officer Loesch did
not specifically describe the area using the term “high crime area,” it is clear
that, in light of Officer Loesch’s perspective and experience, the area was,
indeed, a high crime area.
While on patrol in that high crime area, Officer Loesch received a radio
flash that a shooting had occurred in the vicinity involving a black male and
a silver Pontiac. See id., at 11. Officer Loesch then observed several
males, including the Appellant, leaning on a silver Pontiac. See id., at 12.
As the officers approached Appellant, the interaction was a mere encounter
and no reasonable suspicion to approach was needed. See
Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007) (“A mere
encounter between police and a citizen need not be supported by any level
of suspicion, and carr[ies] no official compulsion on the part of the citizen to
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stop or to respond.” (internal quotation marks and citation omitted; brackets
in original)).
Following this initial encounter, Appellant and his companions
“immediately did a slow jogging into a run, which was from the east side of
the street to the west side of the street, at which time [Appellant] was
grabbing his waistband the whole time.” Id. (emphasis added). This
testimony flatly contradicts Appellant’s argument that he did not run from
the police. Officer Loesch’s partner then gave chase and apprehended
Appellant. See id., at 13. Once apprehended, the officer conducted a frisk
and recovered a firearm from Appellant’s waistband. See id.
Under the totality of the circumstances, giving due weight to the
reasonable inferences drawn by Officers Loesch and Donahue in light of their
experience, we find that Appellant’s unprovoked flight at the officers’
approach, coupled with Officer Loesch’s testimony that the area was a high
crime area, sufficiently established the reasonable suspicion necessary to
warrant a Terry stop under the Fourth Amendment. See, e.g., In the
Interest of D.M., 781 A.2d 1161, 1164 (Pa. 2001) (“[U]nprovoked flight in
a high crime area is sufficient to create a reasonable suspicion to justify a
Terry stop under the Fourth Amendment.”); Commonwealth v. Tucker,
883 A.2d 625, 630-631 (Pa. Super. 2005) (“[T]he fact that Tucker was in a
high crime area and fled when approached by the police provided the officers
with reasonable suspicion to stop Tucker and conduct a Terry stop.”).
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Accordingly, we reject Appellant’s claim that the trial court erred in failing to
suppress the firearm recovered from his person.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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