Com. v. Vicks, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RASHID E. VICKS :
:
Appellant : No. 1262 EDA 2017
Appeal from the Judgment of Sentence March 22, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000722-2016
BEFORE: LAZARUS, J., OTT, J., and PLATT, J.
MEMORANDUM BY OTT, J.: FILED MARCH 12, 2018
Rashid E. Vicks appeals from the judgment of sentence imposed on
March 22, 2017, in the Court of Common Pleas of Delaware County, following
his conviction on charges of possession of a firearm prohibited, firearm not to
be carried without a license, and possession of a firearm with an altered
manufacturer’s number.1 He received an aggregate sentence of 48 to 96
months’ incarceration, followed by five years of probation. In this timely
appeal, Vicks claims the trial court erred in failing to grant his motion to
suppress physical evidence, the gun. Vicks argues he was subjected to an
investigative detention without reasonable suspicion when the arresting police
officer called out his name and said hello. After a thorough review of the
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 Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6110.2, respectively.
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submission by the parties, relevant law, and the certified record, we affirm.
Before we set forth the relevant history of this matter, we restate our
well-settled standard of review.
When reviewing a trial court’s denial of a suppression motion, our
standard of review is 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. [Commonwealth v.] Woodard,
[634 Pa. 162,] 129 A.3d [480,] 498 [(2015)]. We are
bound by the suppression court's factual findings so long
as they are supported by the record; our standard of
review on questions of law is de novo. Commonwealth v.
Galvin, 603 Pa. 625, 985 A.2d 783, 795 (2009). Where,
as here, the defendant is appealing the ruling of the
suppression court, we may consider only the evidence of
the Commonwealth and so much of the evidence for the
defense as remains uncontradicted. [Commonwealth v.]
Poplawski, [634 Pa. 517,] 130 A.3d [697,] 711 [(2015)].
Our scope of review of suppression rulings includes only
the suppression hearing record and excludes evidence
elicited at trial. In the Interest of L.J., 622 Pa. 126, 79
A.3d 1073, 1085 (2013).
Commonwealth v. Yandamuri, --- Pa. ----, 159 A.3d 503, 516
(2017).
The Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures.
Commonwealth v. Lyles, 626 Pa. 343, 350, 97 A.3d 298, 302
(2014). Search and seizure jurisprudence defines three levels of
interaction between citizens and police officers and requires
different levels of justification based upon the nature of the
interaction. Commonwealth v. Tam Thanh Nguyen, 116 A.3d
657, 664 (Pa. Super. 2015).
These categories include (1) a mere encounter, (2) an
investigative detention, and (3) custodial detentions. The
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first of these, 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 to
respond. The second, an “investigative detention” must be
supported by 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
equivalent of an arrest. Finally, an arrest or “custodial
detention” must be supported by probable cause.
Commonwealth v. Baldwin, 147 A.3d 1200, 1202-1203 (Pa.
Super. 2016) (citation omitted).
In analyzing whether an interaction has escalated from a mere
encounter to an investigative detention, we conduct an objective
examination of the totality of the circumstances using the
following standard:
The totality-of-the-circumstances test is ultimately
centered on whether the suspect has in some way been
restrained by physical force or show of coercive authority.
[Commonwealth v.] Strickler, [563 Pa. 47, 757 A.2d
884,] 890 [(2000)]. Under this test, no single factor
controls the ultimate conclusion as to whether a seizure
occurred—to guide the inquiry, the United States Supreme
Court and this Court have employed an objective test
entailing a determination of whether a reasonable person
would have felt free to leave or otherwise terminate the
encounter. Id. at 890, n. 8. (citation omitted). “[W]hat
constitutes a restraint on liberty prompting a person to
conclude that he is not free to ‘leave’ will vary, not only
with the particular police conduct at issue, but also with
the setting in which the conduct occurs.” Michigan v.
Chesternut, 486 U.S. 567, 573-574, 108 S. Ct. 1975, 100
L. Ed. 2d 565 (1988)(citations omitted).
Lyles, 626 Pa. at 350-51, 97 A.3d at 302-303.
Moreover, we emphasize that:
This Court and the United States Supreme Court have
repeatedly held a seizure does not occur where officers
merely approach a person in public and question the
individual or request to see identification. See Hiibel v.
Sixth Judicial District of Nevada, 542 U.S. 177, 185,
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124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004) (quoting INS v.
Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d
247 (1984) (officer free to ask for identification without
implicating Fourth Amendment, and requests for
identification do not, by themselves, constitute seizures);
Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382,
115 L. Ed. 2d 389 (1991) (citation omitted) (even when
officers lack suspicion, no Fourth Amendment violation
where they merely approach individuals on street to
question them or request identification);
[Commonwealth v.] Au, [615 Pa. 330, 42 A.2d 1002,]
1007-09 [(2012)] (citations omitted) (same);
Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698,
701-02 (2005) (citation omitted) (same). Officers may
request identification or question an individual “so long as
the officers do not convey a message that compliance with
their requests is required.” Bostick, at 437, 111 S. Ct.
2383. Although police may request a person's
identification, such individual still maintains “ ‘the right to
ignore the police and go about his business.’ ” See In re
D.M., 556 Pa. 445, 781 A.2d 1161, 1164-65 (2001)
(citations omitted) (quoting Illinois v. Wardlow, 528
U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)).
Lyles, 626 Pa. at 351, 97 A.3d at 303.
Commonwealth v. Singleton, 169 A.3d 79, 82-83 (Pa. Super. 2017).
With these standards in mind, we turn our attention to the underlying
facts of this matter. The trial court specifically found as follows:
On November 19, 2015 at approximately 9:23 A.M. Officer James
E. Nolan of the Chester City Police Department was on duty and
in the area of 16th Street in Chester, Pennsylvania.
Officer Nolan was in a marked vehicle and in uniform and was
conducting an “area check.”
Officer Nolan described an area check as follows: “you just drive
through the area, and look for any suspicious activity.”
Officer Nolan was familiar with the area of East 16th Street and
Washington Avenue in Chester, Pennsylvania. He described the
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area as a “high-crime area” and explained that he was aware that
the area has experienced a rash of robberies and has frequent
shootings.
At that time Officer Nolan observed [Vicks] standing on the south
side of East 16th Street on the northeastern edge of the Widener
campus area.
A review of the testimony of Officer Nolan reveals that he knew
[Vicks] from prior encounters with him.
Officer Nolan knew where [Vicks] resided, specifically, that he
lived in the Sun Village section of the city of Chester.
Upon recognizing [Vicks], Officer Nolan pulled his patrol car over
to where [Vicks] was standing.
He said “hello Mr. Vicks” and started to exit his patrol car.
While he was exiting his patrol car, [Vicks] ran away.
Almost immediately, as [Vicks] was running, he reached for the
waist area of his pants. As he did so, he lifted up the bottom of
his shirt and exposed the handle of a handgun, which Officer Nolan
observed.
Officer Nolan was aware that [Vicks] was a person prohibited from
carrying a firearm due to a prior conviction. Accordingly, Officer
Nolan gave chase and ultimately apprehended [Vicks].
Findings of Fact and Conclusions of Law, 10/13/2016 at 1-2.
Against these findings, Vicks claims that he was subjected to an
investigative detention the moment Officer Nolan called out his name.
Specifically, Vicks claims, “[a] reasonable person would believe that he was
being restrained or stopped if a uniformed police officer, who had previously
stopped the person, approached the person in his vehicle and then called the
person by name.” Vicks’ Brief at 4-5. Vicks cites no case law that directly
supports his proposition that a uniformed police officer calling to a person by
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name represents the coercive authority or physical force described in
Commonwealth v. Jones, 378 A.2d 835 (Pa. 1977), that would transform a
mere encounter into an investigative detention. Indeed, our review of case
law also leads to a similar lack of success. Nonetheless, Vicks cites Jones,
supra, as supportive of his claim. We find that argument unavailing.2
In Jones, a Missouri state trooper stopped Jones, who was walking
along a Missouri highway. Jones looked unkempt but was breaking no law.
Nonetheless, the trooper stopped Jones, asked him questions, asked for his
identification, and told him to sit in the back seat of his police vehicle while he
ran a background check on Jones.3 Even though the trooper told Jones he
could leave while the background check was occurring, our Supreme Court
determined while the initial stop of Jones was a close call, by the time the
trooper told Jones to sit in the car, he was actively restricting Jones’s
movements, thereby creating an investigative detention. Because the trooper
had no reasonable suspicion that Jones was engaged in criminal activity while
walking along the roadway, Jones’s subsequent statement to the trooper was
suppressed.
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2 There is no question that Officer Nolan had a reasonable suspicion of criminal
activity when he observed a pistol grip in Vicks’ waistband. Officer Nolan knew
that Vicks was not allowed to possess a firearm due to a prior conviction.
Accordingly, our analysis need focus only on the initial interaction between
Officer Nolan and Vicks.
3 The background check revealed Jones was wanted in Pennsylvania.
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Instantly, the trial court determined, and we agree, that Officer Nolan,
simply saying hello to Vicks and starting to get out of the car, did not engage
in the use of coercive authority, thereby transforming the brief encounter into
an investigative detention. In fact, Jones, supra, relied upon by Vicks,
recognizes that any encounter with a uniformed law enforcement officer
represents a certain level of exercise of authority by that officer. Such
authority is inherent with the police. However, pursuant to Jones, it takes
more than the routine appearance of a uniformed police officer to represent
the type of coercive authority needed to subject a citizen to an investigative
detention.
Because there is inherent authority in the presence of a police officer,
the totality of the circumstances must be examined to determine whether such
coercive authority has been invoked. In Jones, stopping a pedestrian, the
escalation of questioning, and telling the person to sit in the car, represented
coercive authority and an investigative detention. Instantly, the trial court
determined as a matter of law, and we agree, that no such factors were
present. The trial court concluded: “In the case sub judice, Officer Nolan
simply pulled his police car up to the curb and said ‘hello’ to [Vicks]. There
was no order to stop and remain. There is nothing in the record about any
lights or sirens being activated.” Findings of Fact and Conclusions of Law,
supra, at 2. The certified record is bereft of evidence demonstrating anything
other than the presence of a uniformed police officer when Vicks turned and
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fled the scene. As such, Vicks’ argument that no reasonable person, to whom
a police officer has said hello by name, would feel able to leave, fails.4
As noted above, once Officer Nolan spotted the pistol grip, he had
reasonable suspicion that Vicks was committing a crime. Therefore, the
subsequent foot chase, apprehension and arrest of Vicks were all legally
justified.
Because Vicks was not subjected to an investigative detention when
Officer Nolan greeted him by name, Vicks is not entitled to relief. Accordingly,
the trial court properly denied Vicks’ motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/18
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4 We also note there is an internal contradiction in Vicks’ argument. He claims
that in the situation presented to him, no reasonable person would have felt
free to leave, yet that is exactly what he did.
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