Com. v. Gray, L. ( 2014 )

J-A35016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAPHON GRAY,
Appellant No. 1502 WDA 2013
Appeal from the Judgment of Sentence entered August 21, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-0008435-2012
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 24, 2014
Laphon Gray (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of carrying a firearm without a license,
possession of a controlled substance with intent to deliver, and possession of
a controlled substance.1
The trial court detailed the pertinent facts and procedural history as
follows:
On the night of March 28, 2012, [Detectives Kennedy,
Love, Pacheco and Stroschein of the City of Pittsburgh Police]
were patrolling a high crime area of the North Side of the City of
Pittsburgh [in plain clothes and an unmarked vehicle, at
approximately 10 p.m.]. As they were driving, they saw three
males, including [Appellant], standing at an intersection. They
witnessed [Appellant] grab his waistband with two hands and
crouch down in an attempt to conceal himself behind one of the
____________________________________________
1
18 Pa.C.S.A. § 6106, and 35 Pa.C.S.A. § 780-113(a)(30) and (16).
J-A35016-14
other males. [Appellant’s] actions led the officers to believe that
he had a firearm in his waistband. When the police identified
themselves to [Appellant], he lifted up the object in his
waistband, looked around, and fled. A pursuit ensued and the
police saw [Appellant], with his right hand, pull out a firearm
from his waistband and throw it along with two white rectangular
objects, believed to be narcotics. [Appellant] was apprehended
and the firearm was recovered. Three feet away from the gun,
the police found two rectangular bundles containing 100 white
stamp packets. The stamp packets contained a total of 2.61
grams of heroin. [A search of Appellant yielded $24 and a cell
phone.]
The firearm was tested and found to be in good operating
condition. [Appellant] was 19 years of age at the time of this
incident and was ineligible to carry a firearm. An expert testified
at trial that [Appellant] possessed the heroin with the intent to
deliver it.
Trial Court Opinion, 4/23/14, at 1; see also N.T., 5/28/13, at 6-28; N.T.,
5/31/13, at 65.
Appellant was charged with firearms not to be carried without a
license, possession with intent to deliver heroin, and possession of heroin.
Appellant filed a suppression motion on October 24, 2012, which, following a
hearing on May 28, 2013, the trial court denied. A jury trial commenced on
May 31, 2013, at the conclusion of which the jury rendered its verdicts.
Following a sentencing hearing, the trial court, on August 21, 2013,
sentenced Appellant to 5 to 10 years of imprisonment, to be followed by five
years of probation. Appellant filed a timely notice of appeal. Both Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
-2-
J-A35016-14
1. DID THE POLICE VIOLATE [APPELANT’S] RIGHTS UNDER
ARTICLE 1 SECTION 8 OF THE PENNSYLVANIA
CONSTITUTION AND THE FOURTH AMENDMENT OF THE
UNITED STATES CONSTITUTION BY SEIZING HIS PERSON
WITHOUT REASONABLE SUSPICION, AND, AS A RESULT, THE
TRIAL COURT ERRED IN NOT SUPPRESSING THE FRUITS OF
THAT CONSTITUTIONAL VIOLATION?
2. DID THE COMMONWEALTH FAIL TO PRODUCE SUFFICIENT
EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT
[APPELLANT] POSSESSED HEROIN WITH INTENT TO
DELIVER?
Appellants’ Brief at 4.
In his first issue, Appellant argues that the Commonwealth failed to
demonstrate that police had reasonable suspicion that criminal activity was
afoot to justify the investigative detention of Appellant, and therefore the
trial court erred in denying Appellant’s suppression motion. Our scope and
standard of review is well-settled:
An appellate court's 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. [Because] the prosecution prevailed in
the suppression court, we may consider only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the record supports the factual findings of
the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations
omitted).
Here, Appellant argues that Officer Kennedy’s observations of
Appellant “grabbing his waistband” and “crouching” did not amount to
-3-
J-A35016-14
reasonable suspicion of criminal activity because under the totality of the
circumstances, no officer could reasonably infer from those observations that
Appellant was engaged in criminal activity. Appellant’s Brief at 11-18.
In Pennsylvania, there are three categories of interaction between the
police and members of the public: 1) mere encounters, which are
characterized by the fact that the suspect has no official compulsion to stop
or respond to the police, and which need not be supported by any level of
suspicion; 2) investigative detentions, in which suspects are required to stop
and submit to a period of detention, but are not subject to such coercive
conditions to qualify as an arrest, and which must be supported by
reasonable suspicion; and 3) arrests, or custodial detentions, which must be
supported by probable cause. Commonwealth v. Astillero, 39 A.3d 353,
357-358 (Pa. Super. 2012).
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. 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.
Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa. Super. 2008)
quoting Commonwealth v. Reppert, 814 A.2d at 1201–1202. See also
-4-
J-A35016-14
Commonwealth v. Mendenhall, 715 A.2d 1117, 1119 (Pa. 1998) (“in
addressing whether an investigative ‘stop’ occurred ... the pivotal inquiry is
whether, considering all the facts and circumstances evidencing the exercise
of force, a reasonable man would have thought he was being restrained”).
Officer Kennedy testified regarding his interaction with Appellant as
follows:
[W]e were operating an unmarked vehicle and we were in
plainclothes. We approached Kennedy Avenue. ... I observed
three males standing on the corner of Perrysville and Kennedy in
front of a building which would be 2821 Perrysville Avenue. I
turned right onto Kennedy Avenue and slowed down by these
three males that were standing in front of the buildings at which
time [Appellant] grabbed his waistband with both hands and
tried to conceal himself behind one of the other males.
***
Initially when we first went by he kind of crouched down,
bent down trying to conceal himself at which time I illuminated
him with my portable flashlight and I began to identify myself as
Pittsburgh police. He backed up from the male he was trying to
conceal himself behind, took a few steps back. He motioned and
began to pull up on his waistband ... and he started looking
around and fled towards [an] opening between 2821 Perrysville
and 2813.
***
[H]e began to flee toward that opening. Before he
was at the corner, before we took the corner, I saw him pull out
of his right hand which now contained the firearm .... [before] he
turned that corner, that’s whenever he brandished the firearm,
he fled around the corner.
N.T., 5/28/13, at 8-9.
Officer Kennedy testified that the area of Perrysville and Kennedy is a
high crime area in which he has made “dozens and dozens” of arrests. Id.,-5-
J-A35016-14
at 9-10. He further testified that Appellant’s furtive movements led him to
believe that Appellant might be armed with a weapon, and that Appellant
fled when the officer, from his unmarked vehicle, illuminated Appellant with
the flashlight and began to say “Pittsburgh Police.” Id. at 10-11. Appellant
was pursued by Officers Stroschein and Pacheco, who took Appellant into
custody and directed Appellant to an area behind 2811 Perrysville, where
Officer Kennedy retrieved a Highpoint 9-millimeter firearm with five rounds
in the magazine and one round in the chamber, and two bundles of heroin.
Id. at 12.
This testimony was corroborated by Officer Stroschein, who testified
that he was in the police car with Officers Love, Pacheco and Kennedy,
driving inbound on Perrysville Avenue when they saw Appellant bend down
and attempt to conceal himself behind the two other people he was with.
Id. at 21. The officer turned right onto Kennedy, and drove alongside the
group, at which time Appellant reached for his waistband and began to flee.
Id. at 22. Detective Kennedy testified that when Appellant fled, he pursued
Appellant and observed him holding a black firearm in his right hand, which
he discarded behind 2811 Perrysville along with two white rectangular
objects. Id. at 19-30.
The trial court concluded that, under the totality of the circumstances,
Officer Kennedy’s interaction with Appellant constituted an investigative
-6-
J-A35016-14
detention that was supported by reasonable suspicion. The trial court
explained:
In this case, there was ample reasonable suspicion to conduct a
stop because it was at night in a high-crime area, and the
officers observed [Appellant’s] unusual behavior as he attempted
to conceal himself behind his companions. The officers also
observed [Appellant] in possession of what they believed was a
handgun in his waistband. At that point, it was appropriate for
the officers to stop [Appellant] and investigate. ... Once the
police lawfully ordered [Appellant] to stop, he ran and discarded
his gun and drugs. As such, the contraband discarded by
[Appellant] was voluntarily abandoned. ... Therefore, there was
no error in denying suppression this matter.
Trial Court Opinion, 4/23/14, at 2-3 (citations omitted).
Upon review, we find that the police officers’ initial interaction with
Appellant at the street corner constituted a mere encounter that escalated
into an investigative detention when the officers pursued Appellant after he
fled.
“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.” Collins, 950 A.2d at
1046-1047. “To guide the crucial inquiry as to whether or not a seizure has
been effected, the United States Supreme Court has devised 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-
-7-
J-A35016-14
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.” Commonwealth v. Strickler, 757 A.2d
884, 889–90 (Pa. 2000) (internal citations and footnotes omitted).
“Examples of circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening presence of
several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer's request might by compelled.”
Commonwealth v. McClease, 750 A.2d 320, 324–25 (Pa. Super. 2000)
quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870,
64 L.Ed.2d 497 (1980)).
“[T]he Pennsylvania Supreme 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.” Commonwealth v. Lyles, 97 A.3d 598, 303 (Pa. 2014).
See also Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa. Super.
2011) (“the approach of a police officer followed by questioning does not
constitute a seizure”). Here, when the officers observed Appellant on the
street corner making furtive movements, the officers were free to approach
Appellant and identify themselves as police officers, and such interaction,
-8-
J-A35016-14
where the officers drove alongside Appellant, shone a flashlight, and
announced themselves as police, did not rise to the level of a seizure. There
is no evidence that when the officers approached Appellant, they made any
show of physical force or display of authority. No weapons were drawn, and
Appellant was not precluded from leaving. The officers neither restrained
Appellant nor instructed him that he was not free to leave. Accordingly, the
officers’ initial interaction with Appellant, where they simply drove alongside
Appellant, and without exiting their vehicle, illuminated him with a flashlight
and identified themselves as police, required no level of suspicion to be
constitutionally valid. See Commonwealth v. Riley, 715 A.2d 1131, 1134,
(Pa. Super. 1998) (where the police pulled up along the sidewalk in an
unmarked car and then exited the vehicle in order to approach the appellant
and those with him, the mere approach by a law enforcement official did not
need to be supported by any level of suspicion, and carried no official
compulsion on the part of the citizen to stop or to respond); Lyles, 97 A.3d
at 305-306 (where an officer sees men sitting at a vacant building, there is
no impropriety in the officer’s approaching the men, nor in asking their
reason for loitering there, and the officer’s request for identification does not
elevate the interaction from a mere encounter to an investigative detention);
Coleman, 19 A.3d at 1116 (where police officer approached the appellant
and asked him if he had a gun, that interaction constituted a mere encounter
that required no level of suspicion to be constitutionally valid);
-9-
J-A35016-14
Commonwealth v. Guess, 53 A.3d 895 (Pa. Super. 2012) (where police
officer approached defendant without making any verbal command for
defendant to stop and without impeding his movement, but merely identified
himself and asked if defendant was willing to speak with him, a reasonable
person would have felt free to terminate the encounter during the initial
approach and questioning).
When Appellant fled, however, and the officers pursued and
subsequently arrested him, the encounter escalated into a seizure. See
Commonwealth v. Cottman, 764 A.2d 595, 599 (Pa. Super. 2000) (where
police officer approached three individuals in a parked car and asked if he
could speak to them, and the appellant took flight, the officer’s pursuit of
appellant constituted a seizure). We conclude that the officers’ pursuit of
Appellant was supported by reasonable suspicion, and Appellant’s arrest was
supported by probable cause, given the totality of the following
circumstances: Appellant’s presence in a high crime area, together with his
furtive movements and efforts to conceal himself, his immediate flight when
approached by police, and the officers’ observations of Appellant carrying a
handgun while he fled from officers. See Cottman, 764 A.2d at 599-600(given the appellant's presence in a high crime area, furtive movement to
conceal an object when seen by police and subsequent flight, specific and
articulable facts existed to substantiate a finding of reasonable suspicion to
pursue him). This reasonable suspicion was further supported by Appellant’s
- 10 -
J-A35016-14
subsequent actions in displaying the handgun, which he then discarded
along with packets of contraband during his flight.
We additionally note that, to the extent Appellant seeks to suppress
the handgun and the drugs, our Supreme Court has explained that “[i]n
order to prevail on a [suppression] motion, ... a defendant is required to
separately demonstrate a personal privacy interest in the area searched or
effects seized, and that such interest was ‘actual, societally sanctioned as
reasonable, and justifiable.’ Such a legitimate expectation of privacy is
absent where an owner or possessor meaningfully abdicates his control,
ownership or possessory interest.” Commonwealth v. Hawkins, 718 A.2d
265, 267 (Pa. 1998) (citations and footnote omitted). Here, Appellant
abandoned any personal privacy interest in the gun and drugs upon
discarding them during his flight from the police. Because Appellant’s flight
and the abandonment was not coerced by any illegal police conduct,
Appellant has no standing to contest the search and seizure of items which
he voluntarily abandoned. See Commonwealth v. Riley, 715 A.2d 1131,
1134 (Pa. Super. 1998).
In his second issue, Appellant argues that the Commonwealth failed to
produce sufficient evidence to prove beyond a reasonable doubt that he
possessed heroin with intent to deliver.
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are sufficient to establish
- 11 -
J-A35016-14
all elements of the offense beyond a reasonable doubt. We may
not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant's guilt unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. When evaluating the credibility and weight of
the evidence, the fact-finder is free to believe all, part or none of
the evidence. For purposes of our review under these principles,
we must review the entire record and consider all of the
evidence introduced.
Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).
At trial, Officers Kennedy, Stroschein and Pacheco testified that they
saw Appellant in possession of a handgun, and that they observed him
discard two packets of contraband, which were later recovered and
determined to contain heroin. N.T., 5/31/13, at 28-68. Officer Kennedy
additionally testified that results from the police crime lab indicated that the
gun was a Hi-Point pistol in good operating condition, and that the
contraband was heroin packed in “two stacks [of] five rubber banded
bundles each holding ten paper packets ... one stack had 50 packets that
contained ... heroin weighing 1.23 grams [and] the other rubber band
bundle [contained] 50 packets [of] heroin [weighing] 1.38 grams,” for a
total of 2.61 grams of heroin. Id. at 36-37.
The Commonwealth also presented the expert testimony of Detective
Mark Goob of the City of Pittsburgh Police Department, who testified that he
believed Appellant possessed the heroin with an intent to deliver. In
reaching his determination, Detective Goob explained that in his experience,
- 12 -
J-A35016-14
drug dealers often carry loaded guns to protect their proceeds, and that it is
uncommon for drug users to carry loaded weapons. Id. at 80-83. Detective
Goob additionally noted that the 100 “stamp bags” of heroin had a retail
value of $1,000, and further opined that the fact there were 100 bags
(rather than 99 or 98 bags) indicated that Appellant had recently purchased
them and not sold any yet, given that heroin is commonly sold in bundles of
ten “stamp bags.” Id., at 83-92. The officer further testified that drug
dealers commonly take the money from their last drug sale and use it to
purchase more drugs, and that the 100 stamp bags found on Appellant
together with the fact that Appellant had very little cash on him indicated
that he had recently purchased the heroin. Id. Moreover, Detective Goob
testified that the fact that Appellant was not found carrying any
paraphernalia for using the heroin, indicated that he did not possess it for
personal consumption. Id. at 83-84. The detective stated that in his
experience, it was common for drug dealers to be “alert”, “on their toes”,
and “watching out for police”, while drug users are more “sluggish” in their
behavior, and Appellant’s immediate flight further suggested that he was a
drug dealer. Id. at 83-85. Detective Goob opined that since Appellant was
unemployed, it was unlikely that he would be able to afford $1,000 worth of
heroin without selling at least a portion of it to offset the cost. Id. at 86.
The foregoing testimony, if believed by the jury, was sufficient to
support a determination that Appellant possessed the heroin with the intent
- 13 -
J-A35016-14
to deliver it. In re T.B., 11 A.3d 500, 504 (Pa. Super. 2010) (“[I]t is the
province of the trier of fact to pass upon the credibility of witnesses and the
weight to be accorded the evidence produced. The factfinder is free to
believe all, part or none of the evidence. The facts and circumstances
established by the Commonwealth need not be absolutely incompatible with
the defendant's innocence, but the question of any doubt is for the
[factfinder] unless the evidence be so weak and inconclusive that as a
matter of law no probability of fact can be drawn from the combined
circumstances.”).
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
- 14 -