Com. v. Moore, H. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
HAKIM MOORE,
Appellant No. 2242 EDA 2017
Appeal from the Judgment of Sentence Entered June 19, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010177-2016
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 20, 2019
Appellant, Hakim Moore, appeals from the judgment of sentence of an
aggregate term of 9½-19 years’ incarceration, imposed after he was convicted
of several firearm offenses. Appellant solely challenges the trial court’s order
denying suppression of the seized firearm. After careful review, we affirm.
The trial court summarized the facts established at the suppression
hearing as follows:
Before trial, Appellant brought a motion to suppress physical
evidence—namely, a firearm which police recovered from his
person in the area of 1600 West Susquehanna Avenue, in the city
and county of Philadelphia, Pennsylvania. The sole witness at the
suppression hearing was Philadelphia Police Officer, Daniel
Loesch, who has been a police officer for nine (9) years and had
worked in the 22nd District for five (5) years. 1600 West
Susquehanna Avenue is located in the 22nd District. []N.T.,
4/17/17, [at] 4-5, 18-19[].
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At around 9:20 p.m. on October 13, 2016, Officer Loesch
and his partner, Officer David Rausch, were patrolling the area of
1600 West Susquehanna Avenue in plain clothes and an unmarked
patrol car. Officer Rausch was the driver while Officer Loesch was
the recorder. Although the patrol car was unmarked, it had dark
tinted windows, a spotlight on the driver’s side, police lights in the
grille of the vehicle, and police lights in the windshield area
towards the top. The vehicle’s spotlight and grille lights were not
turned on, but they would have been visible to bystanders outside
the vehicle. []Id. at … 4-5, 9-11, 26[].
Officer Loesch first observed Appellant standing outside a
deli located on the corner of the 1600 block of West Susquehanna
Avenue, approximately thirty (30) to forty (40) feet away from
the officers’ patrol car. The store is located at a busy intersection
and other people were in the area, but nobody was standing with
Appellant. Officer Loesch testified that he has made prior arrests
near 1600 West Susquehanna Avenue, and has been present in
that area when fellow officers recovered firearms from individuals.
He testified that there had been “numerous [prior] shootings in
that area,” including a recent shooting only “a half of a block
away.” Officer Loesch receives yearly firearms training, during
which he is “taught different tactics on how firearms are concealed
[and] different ways they’re carried.” Officer Loesch also is a
member of the Narcotics Enforcement Team (NET), and he
testified that 1600 West Susquehanna Avenue is “one of the areas
that [NET] receives the most complaints about.” []Id. at … 4-5,
8, 18-21[].
As the officers drew closer in their patrol car, Appellant
looked in their direction and grabbed towards his waistband area,
“like in his middle right where your navel or belly button is at.”
Officer Loesch believed Appellant was armed with a gun because
of “[t]he way he grabbed towards the waistband area, almost
blading himself away from us and immediately turn[ing] his back
and enter[ing] the store quickly.” As Appellant entered the store,
“he was adjusting” his waistband again. On approximately 20 or
30 prior occasions, Officer Loesch had recovered firearms from
people who made similar movements towards their waistbands as
Appellant. []Id. at … 6-9, 18[]. Officer Loesch further explained
that he has participated in “[p]robably over 50” arrests involving
firearms, and in about one-half (½) of those arrests, the suspect
had made the same “movement” as Appellant. []Id. at … 21-
23[].
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After Officer Rausch parked the patrol car, Officer Loesch
exited his patrol car and started walking towards the door of the
deli. Officer Loesch was wearing his police vest and police badge.
[]Id. at … 11-13[]. He observed Appellant coming from the rear
of the store out of one of the aisles approaching the line for the
cashier, where he then stood in line as if he was paying for
something. Then, without having anything in his hand to
purchase, or interact[ing] with the cashier or anyone else inside
the store, Appellant started to walk back out of the deli. When
Appellant reached the store’s doorway, Officer Loesch “made a
decision to stop [Appellant] for an investigation and ... escorted
him out to the side of the door so ... he wouldn’t impede any
pedestrian traffic going in and out of the store.” []Id. at … 12-
14[].
Once outside the store, Officer Loesch “asked [Appellant] to
put his hands up” because he believed Appellant had a weapon
and feared for his own safety. Officer Loesch wanted Appellant’s
hands to be “a further distance” from where “the waistband would
be[.]” When Appellant raised his hands to about ear-level, “his
sweatshirt went up enough where you could see the grips of the
handgun in the waistband area ... just underneath his belly
button.” Officer Loesch asked Appellant whether he possessed a
license for the gun, and Appellant replied “no.” Officer Loesch
therefore recovered the gun and placed it on property receipt, and
then placed Appellant under arrest. []Id. at … 16-18, 21-22[].
Trial Court Opinion (TCO), 1/19/18, at 2-4.
The Commonwealth charged Appellant with violations of 18 Pa.C.S. §§
6105 (persons not to possess, use, manufacture, control, sell or transfer
firearms) (count 1), 6106 (firearms not to be carried without a license) (count
2), and 6108 (carrying firearms on public streets or public property in
Philadelphia) (count 3). On November 16, 2016, Appellant filed a motion to
suppress the seized firearm, arguing, inter alia, that he had been “subjected
to a stop and frisk on less than reasonsable suspicion.” Appellant’s Motion to
Suppress, 11/16/16, at 1 (titled “Omnibus Motion”). A suppression hearing
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was held on April 17, 2017, and the trial court denied the motion on April 18,
2017. Subsequently,
Appellant proceeded by way of a stipulated waiver trial. The
Commonwealth moved to incorporate all non-hearsay testimony
from the … suppress[ion hearing], and then moved in the firearm
recovered from [A]ppellant, the certificate of non-licensure, the
ballistician report, and [A]ppellant’s court summary, deeming him
ineligible to possess a firearm. The Commonwealth and then the
defense rested. The lower court convicted Appellant of all
charges, and deferred sentencing pending the preparation of a
[pre-]sentence report.
Appellant’s Brief at 4. On June 18, 2017, the trial court sentenced Appellant
to consecutive terms of 5-10, 3½-7, and 1-2 years’ incarceration at counts 1,
2, and 3, respectively, for an aggregate sentence of 9½-19 years’
incarceration.
Appellant filed a timely notice of appeal on July 12, 2017, and a timely,
court-ordered Pa.R.A.P. 1925(b) statement on August 25, 2017. The trial
court issued its Rule 1925(a) opinion on January 19, 2018.
Appellant now presents the following question for our review:
Did not the lower court err in failing to grant the motion to
suppress the evidence seized from [A]ppellant where a plain
clothes police officer in an unmarked car on routine patrol lacked
reasonable suspicion to stop [A]ppellant who was simply standing
in front of a corner store and did nothing more than adjust the
waistband of his pants before entering the store?
Id. at 3.
We review a claim that a trial court erred in denying a motion to
suppress under the following standard:
We determine whether the court’s factual findings are supported
by the record and whether the legal conclusions drawn from them
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are correct. Where, as here, it is the defendant who is appealing
the ruling of the suppression court, we consider only the evidence
of the prosecution and so much of the evidence for the defense
which remains uncontradicted when fairly read in the context of
the whole record. If, upon our review, we conclude that the record
supports the factual findings of the suppression court, we are
bound by those facts, and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Walker, 836 A.2d 978, 980 (Pa. Super. 2003) (quoting
Commonwealth v. DeJesus, 787 A.2d 394, 401 (Pa. 2001)).
Both parties and the trial court agree that the applicable constitutional
standard for stopping and searching Appellant for a weapon in this case was
‘reasonable suspicion.’
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. Commonwealth v. Cook, …
735 A.2d 673, 676 ([Pa.] 1999). “This standard, less stringent
than probable cause, is commonly known as reasonable
suspicion.” Id. In order to determine whether the police officer
had reasonable suspicion, the totality of the circumstances must
be considered. In re D.M., 781 A.2d 1161, 1163 ([Pa.] 2001).
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.” Cook, 735 A.2d
at 676 (quoting Terry v. Ohio, 392 U.S. 1, 27 … (1968)). 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, “[e]ven a combination of innocent facts, when
taken together, may warrant further investigation by the police
officer.” Cook, 735 A.2d at 676.
Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).1
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1 The Fourth Amendment to the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution are coextensive with respect to this
standard. See Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.
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Instantly, Appellant argues that Officer Loesch did not possess
reasonable suspicion to believe Appellant was engaged in criminal conduct—
specifically, the illegal possession of a firearm. He argues:
When initially observed by police, … [A]ppellant[] was standing in
front of a store opened for business. At some point, he grabbed
at his waistband, turned to walk into the store, and adjusted his
waistband again. These actions were neither suspicious nor
illegal. Police Officer Loesch decided, solely on the basis of these
innocuous actions, that [A]ppellant had a firearm….
Appellant’s Brief at 8. Essentially, Appellant asserts that Officer Loesch acted
based on a hunch, not reasonable suspicion. “While the term ‘reasonable
suspicion’ is undoubtedly open to some degree of interpretation, it would seem
clear that it was meant to convey a level of suspicion that goes beyond an
‘educated hunch.’” Commonwealth v. Donaldson, 786 A.2d 279, 281 (Pa.
Super. 2001).
The trial court concluded instead that, considering the totality of the
circumstances, Officer Loesch conducted a Terry stop based on reasonable
suspicion, not a mere hunch:
All of these factors in their totality—namely that Appellant grabbed
his waistband and bladed his body away upon seeing the police
car; that he immediately entered the store and again grabbed at
his waistband; that once inside the store he acted as if he was
making a purchase but then left; that Officer Loesch is highly
____________________________________________
Super. 2003) (“The protection against unreasonable searches and seizures
afforded by the Pennsylvania Constitution is broader than that under the
Federal Constitution. However, [i]n determining whether reasonable
suspicion exists for a Terry stop, the inquiry is the same under either Article
1, Section 8 of the Pennsylvania Constitution or the Fourth Amendment of the
United States Constitution.”) (internal citations, footnote, and quotation
marks omitted).
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trained and experienced in recognizing Appellant’s movements as
those exhibited by individuals secreting guns; that he has in fact
recovered guns from individuals making the same movements 20-
30 times; that 16th & Susquehana is known as a high crime area
specifically for shootings—all of these factors combined gave
Officer Loesch reasonable suspicion that Appellant was armed.
TCO at 8-9.
We agree with the trial court. Although Appellant correctly argues that
many of his actions were not suspicious when considered in isolation, “[e]ven
a combination of innocent facts, when taken together, may warrant further
investigation by the police officer.” Cook, 735 A.2d at 676; see also Illinois
v. Wardlow, 528 U.S. 119, 125 (2000) (“Even in Terry, the conduct
justifying the stop was ambiguous and susceptible of an innocent
explanation.”). Moreover,
Terry accepts the risk that officers may stop innocent people.
Indeed, the Fourth Amendment accepts that risk in connection
with more drastic police action; persons arrested and detained on
probable cause to believe they have committed a crime may turn
out to be innocent. The Terry stop is a far more minimal
intrusion, simply allowing the officer to briefly investigate further.
Wardlow, 528 U.S. at 126.
Here, further investigation was warranted by Officer Loesch given that
Appellant engaged in evasive behavior in response to the arrival of police 2 in
____________________________________________
2 Evasive behavior is a relevant factor under the reasonable suspicion
standard. See Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super.
2009).
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a high-gun-crime area,3 where such behavior was consistent with the officer’s
experience during prior encounters with armed individuals.4 Appellant
counters that, unlike in Foglia, he was not “obviously aware of the police
presence.” Appellant’s Brief at 13. We disagree. Whether Appellant was
aware of the police presence in this case is a factual question, and under our
standard of review, “we consider only the evidence of the prosecution and so
much of the evidence for the defense which remains uncontradicted….”
Walker, 836 A.2d at 980. Here, Appellant did not present any evidence at
the suppression hearing supporting his assertion that he was unaware of the
police presence. However, the Commonwealth presented at least some
evidence through the testimony of Officer Loesch that supports the inference
that Appellant was reacting to the arrival of police. The trial court found that
evidence credible, and our standard of review demands that we honor the
____________________________________________
3 It is well-established that while presence in a high crime area is not by itself
sufficient to support a Terry stop, it is a relevant factor to consider under the
reasonable suspicion standard. See Wardlow, 528 U.S. at 124 (“An
individual’s presence in an area of expected criminal activity, standing alone,
is not enough to support a reasonable, particularized suspicion that the person
is committing a crime. But officers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation. Accordingly, we have
previously noted the fact that the stop occurred in a ‘high crime area’ among
the relevant contextual considerations in a Terry analysis.”) (internal citation
omitted).
4“[I]f a suspect engages in hand movements that police know, based on their
experience, are associated with the secreting of a weapon, those movements
will buttress the legitimacy of a protective weapons search of the location
where the hand movements occurred.” Foglia, 979 A.2d at 361.
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court’s factual determination in that regard. See In re L.J., 79 A.3d 1073,
1080 (Pa. 2013) (“When we state that part of our ‘task’ is to determine
whether the record supports the suppression court’s factual findings, this is
another way of expressing that our standard of review is highly deferential
with respect to the suppression court’s factual findings and credibility
determinations. In other words, if the record supports the suppression court’s
findings, we may not substitute our own findings.”). Accordingly, we conclude
that Appellant’s claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/19
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