Com. v. Chau, D. ( 2019 )

J-A13008-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID N. CHAU :
:
Appellant : No. 1437 EDA 2017
Appeal from the Judgment of Sentence December 14, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009672-2014
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 14, 2019
Appellant, David N. Chau, appeals from the judgment of sentence
entered December 14, 2016, in the Court of Common Pleas of Philadelphia
County. We conclude that under controlling precedent, the police lacked
reasonable suspicion to detain Appellant. Accordingly, we reverse the trial
court’s order denying Appellant’s motion to suppress, and we vacate the
judgment of sentence.
The trial court summarized the factual and procedural history of this
case as follows:
[Appellant] was arrested and was charged with inter alia,
Firearms not to be Carried Without a License1, Carrying Firearms
on Public Streets or Public Property in Philadelphia2, and Person
not to Possess or Control a Firearm3 for events that occurred on
August 10, 2014, at or near the 800 block of Granite Street in the
City and County of Philadelphia.
118 Pa. [C.S.A.] § 6106
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* Retired Senior Judge assigned to the Superior Court.
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218 Pa. C.S.A. § 6108
318 Pa. C.S.A. § 6105
A motion-to-suppress hearing was conducted before this
[c]ourt on March 24, 2015. The following facts were proved at
the hearing: Police Officer Ned Felici and his partner, Police Officer
Holland (first name not given), were in full uniform, in a marked
vehicle, in the area of Granite Street responding to a report of a
person with a gun. The flash information they received was “an
Asian male in a black and red jacket in possession of a firearm
with a black male in a grey shirt on the 800 block of Granite
Street.” The officers proceeded to the location and pulled up mid-
block (where Trotter Street breaks up Granite Street). Officer
Felici observed [Appellant], who matched the exact description
contained in the flash information. Officer Felici exited his vehicle
and pulled his weapon; [Appellant], who had looked at Officer
Felici exiting his vehicle, began to turn and walk eastbound on
Granite Street. Fearing for his own safety as he could not see
[Appellant’s] right hand in his pocket, Officer Felici asked
[Appellant] to show him his hands. As Officer Felici is telling
[Appellant] to show his hands, [Appellant] steps off the curb
between two parked cars and starts to raise his left hand. As he
is doing this, Officer Felici hears a large metal object hit the
ground and [Appellant] then raises his right hand. Officer Felici
automatically believed it was a gun that was dropped and placed
[Appellant] in handcuffs. Officer Felici looked in the area between
the two cars, and where [Appellant’s] right foot would have been,
Officer Felici found a gun. [Appellant] was placed into custody.
The entire encounter took place within a matter of seconds.
Following argument, the motion to suppress was denied.
[Appellant] proceeded to trial and on March 26, 2015, a
mistrial was declared due to a hung jury. Following numerous
continuances, a second jury was empaneled and trial commenced
on September 13, 2016. At the conclusion of trial, [Appellant]
was found guilty of firearms not to be carried without a license
and carrying firearms on public streets or public property in
Philadelphia. After the jury exited the courtroom, Counsel
stipulated that there was a predicate offense charge of robbery
that [Appellant] was previously convicted of and this [c]ourt found
[Appellant] guilty of person not to possess or control a firearm.
Sentencing was deferred pending the completion of a pre-
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sentence report. On December 14, 2016, this [c]ourt sentenced
[Appellant] to an aggregate term of eight and one-half (8 1/2) to
seventeen (17) years of incarceration followed by five (5) years
of probation.4
4 [Appellant] was sentenced to [a] term of five
(5) to ten (10) years of incarceration on the charge of
person not to possess or control a firearm; three and
one-half (31/2) to seven (7) years of incarceration on
the charge of firearms not to be carried without a
license; followed by five (5) years of probation on the
charge[] of carrying firearms on public streets or
public property in Philadelphia.
Thereafter [Appellant] filed a motion for Modification of
Sentence which was denied by operation of law on April 21, 2017.
A timely Notice of Appeal to the Superior Court was filed on May
5, 2017. On May 11, 2017, this [c]ourt filed an Order requesting
[Appellant] to file a Statement of Matters Complained of on Appeal
pursuant to PA. R.A.P. Rule 1925 (b). On June 1, 2017,
[Appellant] filed a Request for Extension of Time to File a
Supplemental Statement of Errors Upon Receipt of all Notes of
Testimony which was granted. Following the receipt of the notes
of testimony, on September 10, 2018, a statement was filed on
behalf of [Appellant].
Trial Court Opinion, 10/3/18, at 1-3 (internal citations omitted). The trial
court filed its opinion pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issue for our review: “Did not the lower
court err by denying suppression of the physical evidence obtained after the
police, acting on an anonymous tip, improperly seized [Appellant] in the
absence of reasonable suspicion or probable cause, resulting in the forced
abandonment of a gun?” Appellant’s Brief at 3. Specifically, Appellant argues
that “[he] was seized by the police without reasonable suspicion or probable
cause, which seizure resulted in the forced abandonment of a handgun.
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Consequently, the [trial] court improperly denied suppression of that
handgun.” Id. at 13.
“When reviewing the propriety of a suppression order, an appellate court
is required to determine whether the record supports the suppression court’s
factual findings and whether the inferences and legal conclusions drawn by
the suppression court from those findings are appropriate.” Commonwealth
v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc). “Where the
Commonwealth prevailed on the suppression motion, we consider only the
evidence of the prosecution and so much of the defense that remains
uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589, 591 (Pa. Super.
2010).
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.
Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en
banc). To the extent that the suppression court’s factual findings are
supported by the record, “we are bound by those facts and will only reverse if
the legal conclusions are in error.” Cooper, 994 A.2d at 591. As an appellate
court, it is our duty “to determine if the suppression court properly applied the
law to the facts.” Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.
Super. 2011) (citation omitted). Moreover, our scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
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This Court has stated the following with regard to interactions between
police officers and the public:
The investigation of possible criminal activity invariably
brings police officers in contact with members of the public.
Depending on the circumstances, a police-citizen encounter may
implicate the liberty and privacy interests of the citizen as
embodied in both the federal constitution, see U.S. Const. art. IV,
and our state constitution, see Pa. Const. art. I, § 8.3. The law
recognizes three distinct levels of interaction between police
officers and citizens: (1) a mere encounter; (2) an investigative
detention, often described as a Terry stop, see Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) a
custodial detention.
Commonwealth v. Mackey, 177 A.3d 221, 226-227 (Pa. Super. 2017)
(internal citations and footnote omitted).
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, and therefore
need not be justified by any level of police suspicion.
In contrast, an ‘investigative detention’ ... carries an official
compulsion to stop and respond .... Since this interaction has
elements of official compulsion it requires reasonable suspicion of
unlawful activity. [. . . .]
Finally, 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. This level of interaction requires that the police have
probable cause to believe that the person so detained has
committed or is committing a crime.
Id. at 227.
Determining [the point of detention] with precision is crucial to
the constitutional analysis because the police must have
reasonable suspicion at the moment of detention; information
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developed after a police-citizen encounter moves from
consensual to coercive cannot be used to justify the detention.
Mackey, 177 A.3d at 228 (internal footnote omitted) (emphasis in original).
An investigative detention constitutes a seizure of a person
and activates the protections of the Fourth Amendment. To
determine whether and when a seizure has occurred, we employ
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.
Id. at 228 (internal citations and quotations omitted).
Here, the testimony provided at the suppression hearing is crucial to the
determination of when the detention occurred. Officer Felici testified for the
Commonwealth and provided the following testimony. At the time of the
incident, Officer Felici was patrolling with his partner, Officer Holland, in
uniform and in a marked police car. N.T., 3/24/15, at 13. While patrolling,
the officers received a call via police radio regarding a person with a gun on
the 800 block of Granite Street. Id. at 14-15. The flash information indicated
that the individual with the gun was an Asian male wearing a black and red
sweat suit and accompanied by a black male. Id. at 14. After receiving the
call, the officers proceeded to the 800 block of Granite Street. Id. at 14. The
area was known as a high crime area where Office Felici had made arrests in
the past for crimes of aggravated assault, guns, and narcotics. Id. at 15.
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Officer Felici testified that once they arrived at the 800 block of Granite
Street, they pulled up to the intersection of Trotter and Granite Streets, and
on the corner, he observed Appellant wearing a black and red sweat suit. N.T.,
3/24/15, at 16. Officer Felici explained that upon arriving, he exited the
vehicle and pulled out his weapon due to the report that Appellant had a
weapon. Id. at 16-17. Upon Officer Felici exiting the vehicle and drawing his
weapon, Appellant started to turn and walk in the opposite direction. Id. at
17, 28. While Appellant was walking away, Officer Felici told Appellant to
show his hands because the officer could see only Appellant’s left hand. Id.
at 18. Appellant stepped off of the curb and stood between two parked cars.
Id. at 18. Officer Felici testified that the above-referenced series of events
occurred very quickly, taking only “seconds.” Id. at 18.
While Appellant was standing between the parked cars, Officer Felici
again told Appellant to raise his hands. N.T., 3/24/15, at 19. Appellant raised
his left hand, but Officer Felici still could not see Appellant’s right hand. Id.
at 19. Officer Felici testified that he heard a large metal object hit the ground,
and Appellant then raised his right hand above his head. Id. at 20. Upon
hearing the metal object hit the ground, and based on his personal experience,
Officer Felici believed the object to be a gun. Id. at 20. After placing Appellant
in custody, Officer Felici found a gun on the street between the two parked
cars where Appellant had been standing. Id. at 21.
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The trial court found Officer Felici’s testimony to be credible and
explained its decision denying the suppression motion as follows:
I’m denying the motion. I find the officer credible. I find
the following facts [. . . .] This is a complete match of a radio call
description detailed in sorts: Asian with black male as well as
the notable coloring of the sweat suit referred to by the officer,
which matches the information. They were responding in uniform
in a marked vehicle. They are responding to a neighborhood that
has been afflicted with a high crime area. There is a good reason
for concern due to the nature of the call.
[Appellant’s] response to viewing a marked vehicle and or
police officers in uniform is to attempt to exit the area. His
movement in response to the officers’ direction to simply show his
hands so that he didn’t have to be concerned about his own safety,
was to refuse that. The clank was a recognizable sound, a
dropping of a firearm, when [sic] raises the height of concern for
that officer as well as it should to any reasonable human being.
And as such, he had every right in the world to temporarily detain
him and retrieve the firearm. Voluntarily abandonment, motion is
denied.
N.T., 3/24/15, at 36-37 (emphasis in original).
In its Pa.R.A.P. 1925(a) opinion, the trial court further stated that the
following facts were proven at the hearing:
Officer Felici observed [Appellant], who matched the exact
description contained in the flash information. Officer Felici exited
his vehicle and pulled his weapon; [Appellant] who had looked at
Officer Felici exiting his vehicle, began to turn and walk eastbound
on Granite Street.
Trial Court Opinion, 10/3/18, at 2.
Thus, the trial court determined that Officer Felici had his weapon drawn
when he exited the vehicle, and this factual determination was supported by
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the evidence presented at the suppression hearing.1 Despite this, the trial
court concluded that the initial interaction was a mere encounter, and that the
interaction did not rise to the level of an investigative detention until the officer
heard the clank of the gun as Appellant dropped it to the ground. Id. at 8-
12. This was error. Based on the facts as found by the trial court, Appellant
would not have felt free to walk away from the officers when Officer Felici
drew his gun, and Appellant was subjected to an investigative detention at
that point. Mackey, 177 A.3d at 228. Thus, we conclude that Appellant was
seized at the time that Officer Felici exited the vehicle with his gun drawn.
Accordingly, the officers were required to have reasonable suspicion to
support that detention. Id. at 227.
Our Supreme Court recently emphasized that reasonable suspicion
means the officer must reasonably suspect that an individual is committing or
has committed a criminal offense. Commonwealth v. Hicks, 208 A.3d 916,
933 (Pa. 2019). The Court stated that “a police officer may [not] infer criminal
activity merely from an individual’s possession of a concealed firearm in
public.” Id. at 936. Thus, the fact that a person is carrying a firearm cannot
form by itself a “particularized and objective basis for suspecting the particular
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1 We note that the trial court also stated that “Officer Felici pulled his weapon
in response to [Appellant’s] starting to turn to walk away and because Officer
Felici could only see [Appellant’s] left hand; he had put the right hand in his
pocket.” Trial Court Opinion, 10/3/18, at 8. However, this statement is not
supported by the record.
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person stopped of criminal activity.” Id. at 939 (citing U.S. v. Cortez, 449
U.S. 411, 417-418 (1981)). Furthermore, this Court has held that an
anonymous tip describing a person with a gun in a particular location, even if
the tip accurately describes the person in a high crime area, is not enough to
constitute reasonable suspicion. Mackey, 177 A.3d at 231-232 (an
anonymous tip that a particular person in a particular location is carrying a
firearm does not, by itself, establish reasonable suspicion for an investigative
detention.)
As noted, Appellant was seized when Officer Felici exited his vehicle with
his gun drawn in order to engage Appellant. The only information Officer Felici
had at the time of that seizure was an anonymous tip that described Appellant
in a high crime area and indicated he had a gun. Pursuant to Hicks and
Mackey, this information alone was insufficient to establish reasonable
suspicion. Accordingly, Officer Felici’s seizure of Appellant was unlawful.
Furthermore, this unlawful activity caused Appellant to abandon the
gun. Because Appellant’s abandonment of the firearm resulted from illegal
police conduct, the gun should have been suppressed. See Commonwealth
v. Byrd, 987 A.2d 786, 791 (Pa. Super. 2009) (stating “Although abandoned
property may normally be obtained and used for evidentiary purposes by the
police, such property may not be utilized where the abandonment is coerced
by unlawful police action.”). As a result, we are compelled to conclude that
the trial court erred in denying Appellant’s motion to suppress this physical
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evidence. On this basis, we reverse the order denying Appellant’s suppression
motion, and we vacate the judgment of sentence and remand for further
proceedings.
Order denying motion to suppress reversed. Judgment of sentence
vacated. Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/19
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