Com. v. Greenleaf, W. ( 2015 )

J-A13028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WARREN GREENLEAF,
Appellant No. 1636 WDA 2013
Appeal from the Judgment of Sentence Entered September 11, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007051-2012
BEFORE: PANELLA, SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 18, 2015
Appellant, Warren Greenleaf, appeals from the judgment of sentence
entered following his convictions of violations of the Pennsylvania Uniform
Firearms Act1 and defiant trespass. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On May 23, 2012 Zone 5, Pittsburgh Police Lieutenant,
Reyne Kacsuta, was patrolling in the Garfield section of the
[C]ity of Pittsburgh Allegheny County PA. As she drove past
5402 Broad St., she saw a woman and three men on the front
porch of an apartment building. The police had received an
anonymous citizen’s complaint the day before of people
trespassing on that property, gambling, and smoking marijuana.
Lt. Kacsuta decided to stop and investigate after observing a
police car drove [sic] past without stopping. As she exited the
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1
18 Pa.C.S. § 6101, et seq.
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police car and approached the front of the apartment building
the people on the porch jumped up and one said, “Okay we’re
going”. Lt. Kacsuta testified that the actions of the people and
their remark, “we’re going” gave her reasonable suspicion that
the people were trespassing.
When the Lieutenant asked the people to remain where
they were, one person, later identified as Anthony Amato began
talking and screaming. [Appellant] began to bang on the
apartment’s locked front door yelling for someone to let him
inside the building, and a third individual started to run away.
Fearing for her safety and because her backup had just begun to
arrive, Lt. Kacsuta handcuffed [Appellant] and the remaining
individuals until she finished her investigation. However, once
she determined that [Appellant] and other individuals had no
outstanding warrants, and would only be charged with a
summary trespass, Lt. Kacsuta began to uncuff the detainees.
[Appellant] had difficulty standing up and stated he had been
shot. When Lt. Kacsuta and Officer McGee went to assist
[Appellant], they saw a gun, in plain view, protruding from his
pants pocket. [Appellant] was placed under arrest and charged
with Violation of the Uniform Firearms Act, Person Not to
Possess, use etc. a Firearm[;] Violation of the Uniform Firearms
Act, Carrying a Firearm Without a License[;] and Defiant
Trespass.
[Appellant’s] firearm was a .38 caliber Colt Special
revolver, tested and found to be in good working condition[.]
Furthermore, [Appellant] did not have a license to carry the gun,
nor could he obtain a license because of prior convictions. All
the testimony from the Suppression hearing was incorporated in
[Appellant’s] non-jury trial.
[Appellant] was found guilty on all three counts and
sentenced on September 11, 2013 to 4 to 8 years.
[Appellant] filed a timely appeal[.]
Trial Court Opinion, 10/14/14, at 2-3 (internal citations and footnotes
omitted). Both Appellant and the trial court complied with Pa.R.A.P.
1925(b).
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Appellant presents the following issue for our review:
Did [the] trial court err in denying [Appellant’s] motion to
suppress where police, acting on an anonymous tip, seized
[Appellant] without the requisite reasonable suspicion to believe
criminal activity was afoot?
Appellant’s Brief at 4.
Appellant argues that Lieutenant Kacsuta violated his constitutional
rights to be free from unreasonable searches and seizures when she stopped
him without the requisite reasonable suspicion to believe he was engaged in
criminal activity. Appellant’s Brief at 11. Appellant contends that on the
evening of the incident at issue, Lieutenant Kacsuta did not know whether
the individuals encountered on the porch were the same individuals who
were there the day before, when the anonymous complaint was made. Id.
at 16. Thus, Appellant asserts, the day-old anonymous tip, in conjunction
with the officer’s observation that Appellant walked away from the porch
when the officer approached, was insufficient to establish reasonable
suspicion of criminal activity. Id. at 11. Because the officers recovered a
firearm from Appellant’s person pursuant to this alleged unlawful seizure,
Appellant maintains that the firearm should have been suppressed. Id. at
19.
The standard of review an appellate court applies when considering an
order denying a suppression motion is well established. An appellate court
may consider only the Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted when read in the
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context of the record as a whole. Commonwealth v. Russo, 934 A.2d
1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d
75 (Pa. 2004)). 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. Id. However, it is also
well settled that an appellate court is not bound by the suppression court’s
conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455
(Pa. 2003)).
With respect to factual findings, we are mindful that it 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. However,
where the factual determinations made by the suppression court
are not supported by the evidence, we may reject those findings.
Only factual findings which are supported by the record are
binding upon this [C]ourt.
Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)
(citations omitted). In addition, we are aware that questions of the
admission and exclusion of evidence are within the sound discretion of the
trial court and will not be reversed on appeal absent an abuse of discretion.
Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
“‘Interaction’ between citizens and police officers, under search and
seizure law, is varied and requires different levels of justification depending
upon the nature of the interaction and whether or not the citizen is
detained.” Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.
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2000). The three levels of interaction are: mere encounter, investigative
detention, and custodial detention. Id.
A mere encounter can be any formal or informal
interaction between an officer and a citizen, but will normally be
an inquiry by the officer of a citizen. The hallmark of this
interaction is that it carries no official compulsion to stop or
respond.
In contrast, an investigative detention, by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the coercive
conditions consistent with a formal arrest. Since this interaction
has elements of official compulsion it requires reasonable
suspicion of unlawful activity. In further contrast, a custodial
detention occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically
speaking, the functional equivalent of an arrest.
Id. (internal citations and quotation marks omitted).
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved
in that activity. Therefore, this Court must make an objective
inquiry, namely, whether the facts available to the officer at the
moment of the [intrusion] warrant a man of reasonable caution
in the belief that the action taken was appropriate.
Commonwealth v. Plante, 914 A.2d 916, 922 (Pa. Super. 2006) (internal
citations and quotations omitted).
“To determine whether a mere encounter rises to the level of an
investigatory detention, we must discern whether, as a matter of law, the
police conducted a seizure of the person involved.” Commonwealth v.
Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002).
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To decide whether a seizure has occurred, a court must consider
all the circumstances surrounding the encounter to determine
whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not
free to decline the officer’s request or otherwise terminate the
encounter. Thus, the focal point of our inquiry must be whether,
considering the circumstances surrounding the incident, a
reasonable [person] innocent of any crime, would have thought
he was being restrained had he been in the defendant’s shoes.
Id. at 1201-1202 (internal citations and quotations omitted).
Lieutenant Kacsuta provided the following relevant testimony.
Lieutenant Kacsuta was patrolling the area of Broad Street, in the Garfield
area of the city on May 23, 2012. N.T., 5/16/13, at 6, 11. On May 22,
2012, the night before the incident at issue, the Zone 5 police station had
received an anonymous complaint regarding individuals at 5402 Broad
Street, who were trespassing, smoking marijuana, and shooting dice. Id. at
5-6. As a result, during her patrol on May 23, 2012, Lieutenant Kacsuta
drove by 5402 Broad Street to observe the area. Id. at 6. Lieutenant
Kacsuta saw one woman and three or four men on the porch to the
apartment building at 5402 Broad Street. Id. She stated that as soon as
she pulled up in a marked police car and started to get out, the individuals
on the porch stood up and said “okay, we’re going.” Id. Lieutenant Kacsuta
testified that response indicated to her that they were in fact trespassing.
Id. Lieutenant Kacsuta described the subsequent developments as follows:
[Lieutenant Kacsuta]: [Appellant] reached towards the door
knob [of the apartment building door] which was locked, and he
started yelling let me in, let me in, let me in. A woman came
out of the second or third floor window and she started yelling
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and I said everybody just sit down. I wanted everybody [to]
just sit down on the porch.
At that point there was one other individual who I later
identified as Anthony Amato, he was a little to the side of the
porch, he was kind of standing in the yard. And he just started
talking and screaming, which was a diversion – I believe was a
diversion, he was trying to divert my attention.
***
And he just kept screaming. So, I’m telling everybody just sit
down. And one of the men ran. He ran like off the porch
towards me and then he turned to my left. I already had my
taser out. I deployed my taser. He screamed, he fell on the
ground. So now I have this guy who is diverting me, I have
Anthony Amato who is diverting me, I have a woman and two
other men on the porch.
***
[Counsel]: At this time, lieutenant, do you have any backup or
are you by yourself?
[Lieutenant Kacsuta]: I was by myself.
[Counsel]: So with all this activity going on what do you do
next?
[Lieutenant Kacsuta]: I’m directing everybody to sit down
which [Appellant], the other individual and the woman sat on the
porch. Amato, I had him lay down on the ground, he eventually
complied. The other guy got away, he ran. He – the taser hit
him, he fell to the ground, he got back up and he ran.
[Counsel]: Okay.
[Lieutenant Kacsuta]: At this point my sense was that I was in
sort of an ambush type situation with this individual who ran
because now I don’t know where he went. So I have everybody
sitting on the porch, and I had already radioed for backup when
I was getting out of the car so other officers were coming.
***
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When the first officer arrived on the scene, it was Officer Greg
McGee, we just started handcuffing the people who were on the
porch and I handcuffed [Appellant].
[Counsel]: At that time what was the basis for your handcuffing
[Appellant] along with the other individuals?
[Lieutenant Kacsuta]: He was – my initial investigation was of
the defiant trespass and because everybody got up to leave as
soon as they saw a police car, I said okay, these individuals do
not belong here so I’m going to investigate this as defiant
trespass.
When [Appellant] tried to get into the building and he
could not access it, that led me further to believe that he was in
fact trespassing on this porch because he couldn’t get in, and he
was yelling to somebody to let him into the building. That’s the
crime that I was investigating.
Once all of this chaos happens with the running and I know
that I am – that the initial complaint is drug dealing, trespass,
gambling and I know that this area, this area -- this is in
Garfield, it is a very violent high crime area. There is a lot of
shootings, there is a lot of drug dealing, so that’s kind of what I
figured I had there. And my initial charge for [Appellant] was
that he was trespassing.
[Counsel]: When all that activity was going on is it safe to say
that you were in fear of your safety?
[Lieutenant Kacsuta]: Yes, I was.
[Counsel]: So, once you place [Appellant] in handcuffs along
with I believe two other individuals what happened next?
[Lieutenant Kacsuta]: Other officers had arrived. We got
everybody handcuffed, got everybody’s name. We ran
everybody for warrants to see if there were warrants for
anybody. I realized I had not patted anybody down because I
just wanted to get them handcuffed so we could all be safe. So
at that point I was about to let [Appellant] go, went to stand him
up, Officer McGee and I went to get him to stand up –
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[Counsel]: Was he in handcuffs?
[Lieutenant Kacsuta]: He was handcuffed. We were going to
stand him up, and I’m not sure at what point we were going to
pat him down, if we were patting him down and letting him go,
but the situation was calm, everything was in my mind at this
point calm and somewhat resolved.
As we went to get [Appellant] up, told him to stand, he
leaned over to his right. He said I can’t stand up, I can’t stand
up, I got shot. Well, I didn’t know when he got shot. I didn’t
know if he had just gotten shot. He said I got shot, I got shot, I
can’t stand up. And he very oddly leaned over to his right side.
And so Officer McGee and I went to pick him up and he still kept
leaning to his right, leaning to his right. As I stood him up I saw
the handle of a gun sticking out of his pants pocket.
Id. at 6-12.
The record supports the conclusion that Lieutenant Kacsuta’s initial
interaction with the individuals on the porch began as a mere encounter.
She approached the individuals merely for purposes of making inquiry. The
reactions of the individuals in response to her approach resulted in her
developing reasonable suspicion that they were involved in criminal activity.
Specifically, the individuals started to leave as she approached, indicating
that “we’re leaving”. Appellant was banging on the front door to the
apartment building seeking access. One of the men started yelling and
screaming and another charged off of the porch towards Lieutenant Kacsuta.
Additionally, the individuals were in the same location that was the subject
of a complaint the night before involving individuals trespassing, smoking
marijuana, and gambling. This address was located in a high crime area of
the city, where drug dealing and shootings are common. Thus, the totality
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of the circumstances reasonably led Lieutenant Kacsuta to believe that the
individuals, including Appellant, were involved in criminal activity. Plante,
914 A.2d at 922. Accordingly, she was justified in detaining these
individuals for purposes of investigating potential criminal activity.
We further note that, despite Appellant’s claim, Lieutenant Kacsuta’s
reasonable suspicion that the individuals were involved in criminal activity
was not based solely on the anonymous tip received by officers the night
before. The previous complaint regarding criminal activity at this address
was simply one factor in the totality of circumstances supporting her
conclusion. Furthermore, it is of no relevance whether Appellant was one of
the individuals trespassing at that address the night before. As noted, the
totality of the circumstances reasonably led Lieutenant Kacsuta to believe
that the individuals, including Appellant, were involved in criminal activity.
Plante, 914 A.2d at 922. As such, reasonable suspicion justified her seizure
of these individuals for purposes of investigating criminal activity. The
seizure of Appellant and the other individuals was lawful.
Having determined that the seizure of Appellant’s person was lawful,
we turn to consider the legality of the seizure of the gun on Appellant’s
person. The gun sticking out of Appellant’s pants pocket came into plain
sight while the officers were attempting to stand Appellant upright after he
stated that he could not stand because he had been shot. We apply the
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following test to determine whether a search falls within the plain view
exception:
For the exception to be present, initially, the officer must not
have violated the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed. Moreover, two
additional conditions must be satisfied to justify the warrantless
seizure. First, the incriminating character of the item must be
immediately apparent. Also, the officer must have a lawful right
of access to the object itself.
Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (quotations
and citations omitted).
Here, the officers viewed the gun from a lawful vantage point. As
stated, the officers had lawfully seized Appellant. The gun became apparent
as the officers were helping Appellant to stand after he asserted that he
could not do so because he had been shot. Additionally, the incriminating
nature of the object was immediately apparent to Lieutenant Kacsuta, and
she had a lawful right to access the firearm. Thus, a warrantless seizure of
the gun was justified.
Accordingly, we conclude the suppression court did not err in finding
Lieutenant Kacsuta had the necessary reasonable suspicion to detain
Appellant. Additionally, because the gun was viewed in plain sight during
the lawful detention, the officers properly seized it. Thus, the trial court did
not err in denying Appellant’s request to suppress this evidence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
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