Com. v. Johnson, C. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CARLTON FITZGERALD JOHNSON, :
:
Appellant : No. 1283 EDA 2016
Appeal from the Judgment of Sentence March 22, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0014992-2013
BEFORE: PANELLA, SOLANO and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 16, 2017
Carlton Fitzgerald Johnson (“Johnson”) appeals from the judgment of
sentence imposed following his convictions of persons not to possess
firearms, firearms not to be carried without a license, carrying firearms on
public streets in Philadelphia, and possession of a small amount of
marijuana.1 We affirm.
The trial court set forth the relevant facts underlying this appeal as
follows:
On November 15, 2013[,] at approximately 6:30 pm, Officer
[Jeffrey] O’Palski [(“Officer O’Palski”)] was on patrol with his
partner, Officer Mundrick,[2] in the area of 1600 North Allison
Street in Philadelphia, Pennsylvania. N.T. [(suppression
hearing),] 4/29/1[4,] at 8. Based on his experience as a Five
Squad officer in the 19th District, Officer O’Palski testified that
“1600 North Allison is a crime-ridden area, it’s a big gang area,
1
See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108; 35 P.S. § 780-
113(a)(31).
2
Officer Mundrick’s first name is not revealed in the certified record.
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right off Lansdowne Avenue; high crime, shootings, robberies,
drugs, drug sales, and drug use.” Id. at 8. While traveling
eastbound in a marked squad car, the officers observed
[Johnson] standing on the southwest corner of Allison and
Lansdowne Streets. Id. at 9.
After looking in the direction of the officers, [Johnson]
immediately began running southbound on the 1500 block of
Allison Street. Id. at 9. In response to [Johnson’s] abrupt
departure, Officer O’Palski turned his vehicle around the corner,
then pulled up alongside [Johnson], who stopped and placed his
hands above his head. Id. at 1[0]. Officer O’Palski observed
that [Johnson] was wearing an orange and white glove on his
right hand, but did not have one on his left. Id. [] Officer
O’Palski asked [Johnson] if everything was okay; [Johnson]
responded that his baby was having a medical emergency. Id.
[] The officers exited their vehicle and approached [Johnson] to
see if he needed rescue or medical attention. Id.
At that time, Officer O’Palski detected a strong odor of
alcohol coming from [Johnson’s] breath. Id. [Johnson] told the
officers that his baby was inside a house on the block of 1500
Allison Street. Id. The officers stayed at the location while
[Johnson] went inside the house[,] in case he was in need of
assistance. Id. After opening the front door of the house and
peeking his head in for two or three seconds, [Johnson] looked
at the officers and told them that he was “good.” Id. At that
time, the officers returned to their patrol car and continued
southbound on Allison Street, rounding the block to continue
eastbound on Lansdowne Avenue to their original route. Id. at
11. As they reached the intersection of Allison and Lansdowne[,]
roughly one minute later, the officers once again observed
[Johnson]. Id. This time, [Johnson] was on the east side of the
1600 block of Allison Street, quickly walking northbound. Id.
Officer O’Palski pulled the patrol vehicle alongside [Johnson] for
the second time, then asked him how his baby was doing. Id.
[Johnson] stated that the baby had stopped breathing, but that
they gave the baby something and he was okay. Id.
From his vantage point inside the vehicle (roughly 10-15
feet from [Johnson]), Officer O’Palski noticed that [Johnson] had
a very large object in his right [front] pants pocket. Id. He
testified that the object was long in size and seemed to be
heavy, as [Johnson’s] right side pocket was sagging down longer
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on the right side than it was on the left. Id. at 12. Officer
O’Palski also observed that [Johnson] had his right hand partially
inside of his pocket, but not all the way in, as it seemed as
though he was unable to fully fit his hand inside of his pocket.
Id. Officer Mundrick asked [Johnson] to remove his hand from
his pocket. Id. [] In response, [according to Officer O’Palski,
Johnson] “bent down slightly, crouched forward, bent the waist
down towards the right side and he side-stepped away and said,
‘we’re cool, we’re cool.’” Id. Officer O’Palski testified that based
on his experience with firearms and people who illegally carry
them on the street, [Johnson’s] behavior was indicative of the
fact that he had a firearm. Id.
After making these observations, Officer O’Palski and
[Officer Mundrick] exited the vehicle. Id. at 13. Officer
Mundrick approached [Johnson] from behind to perform a frisk[,]
while Officer O’Palski approached him from the front. Id. While
performing the frisk, Officer Mundrick touched [Johnson’s] right
pocket, then immediately yelled “gun.” Id. at 14. The officers
then removed [Johnson’s] hands from the area, at which point
they recovered a 9[-]millimeter semiautomatic handgun. Id.
After determining that [Johnson] did not have a license to carry
a firearm, the officers placed him under arrest. Id. at 15. In
addition to the weapon, the officers also recovered two yellow-
tinted bags containing a green, “weedy, seedy” substance that
tested positive for marijuana[,] along with the orange and white
glove that was worn by [Johnson]. Id. at 13.
Trial Court Opinion, 2/17/17, at 1-3 (footnote added).
Following his arrest, the Commonwealth charged Johnson with the
above-mentioned offenses. Johnson thereafter filed a Motion to suppress
the contraband seized from his person, asserting that the police lacked
reasonable suspicion to stop and frisk him. The Commonwealth responded
that the officers possessed reasonable suspicion, and the search was a
lawful protective frisk for weapons, pursuant to Terry v. Ohio, 392 U.S. 1
(1968). After a suppression hearing, the trial court denied the Motion to
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suppress. Johnson subsequently filed a Motion to reconsider the suppression
ruling, which the trial court denied, by operation of law.
The matter proceeded to a non-jury trial, at the close of which the trial
court convicted Johnson on all counts. On March 22, 2016, the trial court
sentenced Johnson to an aggregate term of five to ten years in prison,
followed by five years of probation. Johnson timely filed a Notice of Appeal.
In response, the trial court ordered him to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Johnson timely filed a Concise
Statement.
Johnson now presents the following question for our review:
Did not the [trial] court err by denying [Johnson’s M]otion to
suppress physical evidence, where [Johnson] was subjected to
an investigatory detention and frisk without reasonable suspicion
that he was engaged in criminal activity, in violation of both the
federal and state constitutions, inasmuch as he was stopped and
frisked solely on the basis of a bulge in his pants[] pocket[,]
while in a high crime area[,] after police officers had already
engaged in conversation with him one minute earlier and left the
area, and no behavior on the part of [Johnson] could have led
them to reasonably conclude that he was, or had been, engaged
in any criminal activity?
Brief for Appellant at 3.
In reviewing a challenge to a trial court’s denial of a motion to
suppress, “[o]ur standard of review … is limited to determining whether the
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v.
Kearney, 92 A.3d 51, 65 (Pa. Super. 2014). “In making this determination,
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we may consider only the evidence of the prosecution’s witnesses and so
much of the defense as, fairly read in the context of the record as a whole,
remains uncontradicted.” Commonwealth v. Page, 59 A.3d 1118, 1131
(Pa. Super. 2013) (citation omitted). “Where the record supports the factual
findings of the trial court, the appellate court is bound by those facts and
may reverse only if the legal conclusions drawn therefrom are in error.”
Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015). “With
respect to factual findings, … is the sole province of the suppression court to
weigh the credibility of the witnesses. Further, the suppression court judge
is entitled to believe all, part or none of the evidence presented.” Id.
(citation omitted); see also Commonwealth v. Camacho, 625 A.2d 1242,
1245 (Pa. Super. 1993) (stating that an appellate court will not reverse a
suppression court’s assessment of credibility absent a manifest abuse of
discretion).
Regarding frisks under Terry, supra, this Court has observed as
follows:
[I]t is hornbook law that the Fourth Amendment to the United
States Constitution[,] as well as Article I, § 8 of the Pennsylvania
Constitution[,] protect citizens from unreasonable searches and
seizures. Warrantless searches and seizures (such as occurred
in this case) are unreasonable per se, unless conducted pursuant
to specifically established and well-delineated exceptions to the
warrant requirement. One such exception, the Terry “stop and
frisk,” permits a police officer to briefly detain a citizen for
investigatory purposes if the officer observes unusual conduct
which leads him to reasonably conclude, in light of his
experience, that criminal activity may be afoot. Terry further
held that when an officer is justified in believing that the
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individual[,] whose suspicious behavior he is investigating at
close range[,] is armed and presently dangerous to the officer or
to others[,] the officer may conduct a pat[-]down search to
determine whether the person is in fact carrying a weapon. The
purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without
fear of violence.
In order to conduct an investigatory stop, the police must
have reasonable suspicion that criminal activity is afoot. In
order to determine whether the police had reasonable suspicion,
the totality of the circumstances — the whole picture — must be
considered. Based upon that whole picture[,] the detaining
officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity. To
conduct a pat down for weapons, a limited search or “frisk” of
the suspect, the officer must reasonably believe that his safety
or the safety of others is threatened.
Commonwealth v. Simmons, 17 A.3d 399, 402-03 (Pa. Super.
2011) (internal citations, quotation marks, and some paragraph breaks
omitted). However, “[t]he officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or the safety
of others was in danger.” Commonwealth v. Taylor, 771 A.2d 1261,
1268-69 (Pa. 2001); see also Commonwealth v. Caban, 60 A.3d 120,
129 (Pa. Super. 2012) (stating that “[w]hen considering the totality of the
circumstances, we need not limit our inquiry to only those facts that clearly
and unmistakably indicate criminal conduct. Instead, even a combination of
innocent facts, when taken together, may warrant further investigation by
the police officer.” (citations and quotation marks omitted)). Moreover, in
conducting a reasonable suspicion inquiry, a suppression court is required to
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“afford due weight to the specific, reasonable inferences drawn from the
facts in light of the officer’s experience[.]” Commonwealth v. Brown, 996
A.2d 473, 477 (Pa. 2010).
Johnson argues that the Terry frisk3 of his person was unlawful, and
the contraband seized from that frisk should have thus been suppressed,
because the police lacked reasonable suspicion that he was engaged in
criminal activity. See Brief for Appellant at 17-24. Johnson asserts that
“[t]he fact that [he] was merely present in a ‘high crime area’ … in no way
establishes his involvement in criminal activity.” Id. at 18 (citing
Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa. Super. 1992) (stating
that “[m]ere presence near a high crime area or in the vicinity of a recently
reported crime, is not enough to warrant a Terry stop.”)). Moreover,
according to Johnson, his
actions of side-stepping away from the officers and saying ‘we
cool, we cool,’ similarly does not constitute reasonable suspicion
of his involvement in criminal activity. See [Commonwealth v.
Key], 789 A.2d [282,] 289-[]90 [(Pa. Super. 2001)] (appellant’s
act of ceasing to talk to his companion and turning and walking
away upon observing the officers watching him, does not
constitute reasonable suspicion of appellant’s involvement in
criminal activity).
Brief for Appellant at 18-19. Johnson additionally emphasizes that “Officer
O’Palski testified that he did not suspect [] Johnson of any crime during his
3
It is undisputed that the stop and frisk of Johnson was an investigative
detention by the police.
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first interaction with [Johnson].” Id. at 19 (citing N.T., 4/29/14, at 23).
Finally, Johnson argues that
Officer O’Palski’s observation of a large object in [] Johnson’s
pants does not create a basis for finding reasonable suspicion of
criminal activity. The only reason that Officer O’Palski provided
for thinking that [] Johnson possessed a gun was that [] Johnson
bent slightly to the right. It is, thus, clear that Officer O’Palski’s
belief was based on a hunch and nothing more.
Brief for Appellant at 21 (citation to record omitted).
The record reveals that at the time of the incident, Officer O’Palski had
nearly four years of experience as a police officer. N.T., 4/29/14, at 7. He
is a member of the “Five Squad,” which is a “proactive” squad that focuses
on known high-crime areas. Id. Officer O’Palski previously had completed
specific concealed weapons training through the Institute of Law
Enforcement Education. Id. at 17. Additionally, he had made between 40-
50 prior firearms arrests at the time of the suppression hearing. Id. at 18.
Officer O’Palski testified that, on the date in question, he and Officer
Mundrick were on patrol, in a marked police cruiser, in an area known for
narcotics trafficking and gun violence, at 6:30 p.m. Id. at 7, 8. Officer
O’Palski observed Johnson standing on a street corner. Id. at 9. At that
time, Johnson looked in the direction of the police car and immediately
started running in the opposite direction. Id. In response to Johnson’s
flight, Officer O’Palski pulled the police cruiser up alongside Johnson, who
stopped and placed his hands above his head. Id. at 10. Officer O’Palski
asked Johnson if everything was okay, in response to which Johnson stated
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that his baby was sick, and that the baby was currently inside of a nearby
residence. Id. While Johnson went into the residence in question to
purportedly check on the baby, the officers stayed on the scene in case
Johnson or his child required any additional assistance. Id. However, after
sticking his head inside the house for a few seconds, Johnson told the
officers that all was well. Id. The officers then left and continued on their
patrol route. Id. at 11.
Approximately one minute later, however, the officers again saw
Johnson on the street, and pulled up alongside him to inquire how his baby
was doing. Id. At that time, from his vantage point of approximately 10-15
feet away from Johnson, Officer O’Palski noticed a “very large” bulge in
Johnson’s right front pants pocket. Id. Officer O’Palski could tell that the
object was long, approximately six inches in length, and appeared to be
heavy, as Johnson’s pants pocket was sagging down longer on the right side
than it was on the left side. Id. at 11-12, 36. Officer O’Palski also observed
that Johnson’s right hand was only partially inside of his right front pocket,
as, it appeared to Officer O’Palski, Johnson was unable to fully fit his hand
inside of his pocket due to the large object contained therein. Id. at 12.
Officer Mundrick then asked Johnson to remove his hand from his pocket.
Id. In response, Johnson “bent down slightly, crouched forward, ben[t] the
waist down towards the right side and he side-stepped away and said, ‘we’re
cool, we’re cool.’” Id. Officer O’Palski testified that based on his training
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and prior experience with concealed firearms arrests, Johnson’s behavior in
this regard tended to suggest that he was carrying a firearm. Id. The
officers then stopped Johnson, performed a protective Terry frisk, and
discovered an unlicensed handgun in Johnson’s right front pants pocket, as
well as marijuana. Id. at 13-15.
Based upon the totality of the above circumstances, we conclude that
Officer O’Palski had a particularized and objective basis for reasonably
suspecting that Johnson was engaged in criminal activity. The following
facts are particularly relevant: the location of the incident in a known high-
crime area, Johnson’s unprovoked flight immediately upon noticing the
police, Officer O’Palski’s training and experience concerning concealed
firearms, the identification of a large bulge in Johnson’s pants pocket, and
Johnson’s suspicious behavior. See Commonwealth v. Carter, 105 A.3d
765, 766, 774-75 (Pa. Super. 2014) (en banc) (holding that police officer
had reasonable suspicion to conduct a Terry frisk, where the defendant was
standing on street corner in a high-crime area at night, had a weighted and
angled bulge in his coat pocket, was alerted to the officer’s presence and
intentionally turned his body away several times to conceal the bulge in his
coat pocket, and the officer observed the defendant walking away from
known drug corner when the officer repeatedly circled the area);
Commonwealth v. Brown, 904 A.2d 925, 928 (Pa. Super. 2006) (stating
that unprovoked flight in a high-crime area from persons identifiable as
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police officers is sufficient to establish reasonable suspicion to support an
investigative detention); see also Commonwealth v. Foglia, 979 A.2d
357, 361 (Pa. Super. 2009) (en banc) (concluding that reasonable suspicion
for a Terry frisk existed where the defendant, while located in a high-crime
area, repeatedly looked back at the police and walked away from them, and
“touched his waist area and sat down on a stoop behind some females …
[and t]he police officer was aware, based upon his experience with armed
suspects, that weapons are often concealed in a person’s waistband”).
Accordingly, the police possessed reasonable suspicion that Johnson was
armed and dangerous, were thus authorized to conduct a limited Terry frisk
of his person, and lawfully seized the handgun and marijuana.
Finally, the case law upon which Johnson relies is unavailing. Johnson
principally relies on this Court’s decision in Commonwealth v. Martinez,
588 A.2d 513 (Pa. Super. 1991). See Brief for Appellant at 23-25. In
Martinez, police officers, in plain clothes and in an unmarked car,
approached an intersection where four or five individuals were standing on a
corner. Martinez, 588 A.2d at 515. After looking in the direction of the
unmarked vehicle, Martinez began quickly walking in one direction, and the
other individuals scattered in different directions. Id. The police drove
alongside Martinez and observed her “holding her hands in the front of her
coat, leaning forward, as if to be holding something, leaning forward,
walking quickly up the street.” Id. (citation to record omitted). One of the
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officers then asked Martinez to walk over to the police car, take her hands
out of her jacket, and put her hands on the car. Id. Martinez complied, and
when she put her hands on the car, a plastic bag containing drugs fell from
her coat onto the ground. Id.
On appeal, this Court in Martinez held that the suppression court had
erred in determining that the above facts established reasonable suspicion to
conduct a lawful investigative detention. Id. at 516-17. The panel stated
that the suppression court improperly “mixed together facts of events
occurring both before and as a result of the stop” and “seemingly believed
that Martinez brought the search and seizure upon herself by ‘drawing
attention to herself.’” Id. at 516 (emphasis in original). The Martinez
Court concluded that the only “articulable facts attributable to Martinez,”
which validly could support a conclusion of criminal activity being afoot, were
that she “walked quickly away from a street corner, at 12:20 A.M.[,]” and
“[s]he was holding her hands in the front of her coat and walking quickly up
the street.” Id.; see also id. at 517 (stating that “[t]hese facts are not
enough.”).
In contrast to Martinez, here, Officer O’Palski articulated his specific
observation that, prior to stopping and frisking Johnson, (1) he saw a very
large bulge in Johnson’s pants pocket, and the object in the pocket was
longer than a cell phone and appeared to be heavy; and (2) Johnson’s
behavior, when he was asked to remove his hand from his pocket, of
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crouching forward, “blading” his body sideways, and side-stepping away,
was indicative, based upon Officer O’Palski’s training and experience, of a
person carrying an illegal firearm. See N.T., 4/29/14, at 11-12, 36. To the
contrary, in Martinez, prior to the police stopping and detaining the
defendant, they had little more than an unparticularized suspicion or hunch
that she was engaged in criminal activity when they observed her holding
her coat out in front of her and leaning forward. See Martinez, 588 A.2d at
517. Moreover, unlike the defendant in Martinez, Officer O’Palski testified
that when Johnson first looked in the direction of the marked police car,
Johnson “immediately started running” in the opposite direction. N.T.,
4/29/14, at 9 (emphasis added); see also Brown, supra.
Accordingly, the suppression court did not err or abuse its discretion in
denying Johnson’s Motion to suppress, and Johnson’s issue on appeal fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
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