Com. v. Reddy, K. ( 2019 )

J. S06038/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KEITH REDDY, : No. 3114 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence Entered August 18, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0001647-2017,
CP-51-CR-0014479-2012
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 20, 2019
Keith Reddy appeals from the August 18, 2017 judgments of sentence
entered by the Court of Common Pleas of Philadelphia County following his
conviction of persons not to possess firearms, carrying firearms without a
license, and carrying firearms on public streets in Philadelphia.1 After careful
review, we affirm.
The trial court provided the following synopsis of the relevant factual
and procedural history of this case:
On May 22, 2017, the Court conducted a hearing on
[a]ppellant’s motion to suppress the physical evidence
on the basis that police lacked reasonable suspicion to
stop him.
1 18 Pa.C.S.A. §§ 6105(a), 6106(a), and 6108, respectively.
J. S06038/19
At said hearing, the Commonwealth presented the
testimony of Philadelphia Police Officer
Iroabuch Ndukwe. Officer Ndukwe testified that, on
December 2, 2016, at approximately 2:15 p.m., he
and his partner, Officer Ozorowski, were on routine
patrol in the 22nd District when a radio call came
through for person with a gun at Poplar and Leland
Streets, abutting the 1700 block of Vineyard
Street.[Footnote 3] At the time of the call,
Officer Ndukwe and his partner were within two blocks
of that location. Flash information described the
suspect as a black male wearing a black jacket and
black hat.[Footnote 4] The officers were in a marked
vehicle and in uniform, with Officer Ndukwe riding as
passenger/recorder. They proceeded to Poplar and
Leland Streets, where three black males were
standing in a small park. Officer Ndukwe testified that
when they pulled up in their cruiser, he observed that
[a]ppellant fit the flash description. Officer Ndukwe
cracked his door to get out but before he could do so
-- [a]ppellant took off running. Officer Ndukwe gave
chase on foot, and his partner followed via patrol car.
Officer Ndukwe never lost sight of [a]ppellant during
the chase, which lasted only 20 to 30 seconds, not
even a full block. During the pursuit, and while he
was only three or four steps from [a]ppellant,
Officer Ndukwe saw [a]ppellant reach into his
waistband, retrieve a black .357 Magnum revolver and
throw it over his head onto a rooftop. Officer Ndukwe
then tackled [a]ppellant to the ground, and placed him
under arrest. The gun subsequently was recovered
from the roof of an adjacent property.
[Footnote 3] Poplar and Leland Streets
intersect at a triangular point, forming
two sides of a triangle, with the
1700 block of Vineyard Street forming the
third side of the triangle. Within that
triangle lies a small park.
[Footnote 4] On direct examination,
Officer Ndukwe testified that flash
description was black male, black jacket
and black pants; on cross-examination,
-2-
J. S06038/19
however, he corrected himself and said
the pants were not in the flash, and that
he had meant to say black hat.
Officer Ndukwe also testified that at the time of the
arrest, he had been a police officer in the 22nd District
for three years, and had made numerous arrests,
including 15 to 20 gun arrests, and 5 to 6 arrests in
the 1700 block of Vineyard Street. He testified that
he was familiar with the 1700 block of Vineyard Street
as a high crime area for drugs and guns, and that a
shooting homicide had occurred in the immediate
vicinity (within two blocks) just one week prior to this
incident.
At the same hearing, [a]ppellant introduced the 911
and police radio calls. The 911 call was from an
anonymous person who provided the description of
four or five black males armed with guns, one with a
black hat, black jacket. The police dispatcher
provided the same flash information, four or five black
males armed with guns, one with a black hat and black
jacket.
Based on the foregoing evidence, the Court denied
[a]ppellant’s motion to suppress. Specifically, the
Court determined that the anonymous tip in
conjunction with the unprovoked flight of [a]ppellant,
who fit the flash description and was at the precise
location, which was a high crime area, amply provided
reasonable suspicion to stop [a]ppellant.
The parties thereafter proceeded to a bench trial, at
which the Commonwealth commenced by
incorporating all relevant non-hearsay testimony from
the suppression hearing into the record. The
Commonwealth then introduced the following
stipulations: (1) if called, Officer Oshaughnessy
would testify that he recovered the firearm at issue
from the roof of a garage adjacent to where
[a]ppellant was fleeing; and (2) if called, Officer Welsh
would testify that he’s an expert in the field of firearms
identification and testing, and that he tested the
subject firearm, which was operable, had a barrel
-3-
J. S06038/19
length of four inches and was loaded with six live
rounds when it was recovered. Finally, before resting
its case, the Commonwealth introduced: (1) a
photograph of the gun; (2) the property receipt for
the gun; (3) the actual gun itself; (4) a certificate of
non-licensure demonstrating that [a]ppellant did not
have a valid license to carry a firearm; and
(5) [a]ppellant’s criminal extract showing that he had
a prior conviction for F1 aggravated assault, rendering
him ineligible to possess the subject firearm.
In his case-in-chief, [a]ppellant offered his own
testimony. He testified that, on the date and time at
issue, he and two friends were standing inside the
triangular park at Poplar and Leland Streets, when a
police car pulled up to them, and a black male officer
jumped out of the passenger seat, pointing his firearm
at [a]ppellant’s head. Appellant testified that he did
not have a gun on him at the time, but nonetheless
took off running while his friends stayed put.
Appellant explained that only he took off running
because he was the only one facing the officer and
able to see the officer pointing his weapon. He
testified that while he was fleeing, the officer kept
yelling, “Where is the firearm?” During the chase,
[a]ppellant started to remove his clothing, beginning
with his jacket, to show the officer that he did not
have a weapon. After discarding his jacket, he
attempted to lift his shirt to expose his waistline, at
which time the officer tackled and arrested him.
Based on all the foregoing evidence, the Court found
[a]ppellant guilty of Persons Not to Possess Firearms,
Carrying Firearms without a License; and Carrying
Firearms on Public Streets in Philadelphia. On
August 18, 2017, upon review of the pre-sentence
investigation report and upon consideration of all
relevant facts and circumstances of this case, the
Court imposed sentence as previously set forth.
Trial court opinion, 5/21/18 2-5 (emphasis in original; citations to record
omitted).
-4-
J. S06038/19
On May 22, 2017, after unsuccessfully litigating a
motion to suppress and following a bench trial before
this Court, [a]ppellant was convicted of Persons Not
to Possess Firearms, Carrying Firearms without a
License, and Carrying Firearms on Public Streets in
Philadelphia. On August 18, 2017, upon review of the
pre-sentence investigation report and upon
consideration of all relevant facts and circumstances
of this case, the Court sentenced [a]ppellant to an
aggregate term of four (4) to eight (8) years’
incarceration.[Footnote 1]
[Footnote 1] At the same hearing,
[a]ppellant -- who at the time of his arrest
was on probation in another case for
shooting someone in the chest --
appeared for sentencing following
revocation of his probation (VOP). In the
VOP matter, the Court imposed a
consecutive term of three (3) to six (6)
years’ incarceration, followed by five (5)
years’ probation. Appellant’s VOP
sentence is not subject to this appeal.
On August 28, 2017, [a]ppellant filed post-sentence
motions, which the Court denied on September 6,
2017. He subsequently filed a timely notice of appeal,
and on January 8, 2018, the Court ordered him to file
a Concise Statement of Matters Complained of on
Appeal in accord with Pa.R.A.P. 1925(b). Counsel for
[a]ppellant filed his Rule 1925(b) Statement on
February 16, 2018.[Footnote 2]
[Footnote 2] As proposed justification for
the delay, Counsel cited a discrepancy
between the method of mailing as set
forth in the Court’s proof of service (first
class mail) and the purported actual
method of mailing (inter-office mail).
Rather than consuming resources into
whether the above-cited typo caused an
actual delay in receiving the Order, and
in the interest of judicial economy, the
-5-
J. S06038/19
Court will overlook the untimeliness of
[a]ppellant’s Rule 1925(b) Statement.
Id. at 1-2.
Appellant raises the following issues for our review:
A. Should not this Court address the merits of
appellant’s appeal where appellant filed one
timely appeal for both dockets, CP-51-CR-
0001674-2017 and CP-51-CR-0014479-2012 as
the matters represented one judgment of
sentence imposed by the trial court?
B. Did not the trial court err in failing to grant the
motion to suppress where uniformed police,
without reasonable suspicion, violated
appellant’s constitutional rights when they
confronted and chased him based on an
uncorroborated anonymous tip containing a
vague, general description, and absent any
evidence corroborating criminal activity?
Appellant’s brief at 3.
First, appellant avers that this court should address the merits of his
appeal when he filed one notice of appeal, despite the fact that the trial court
entered judgments of sentence at two trial court docket numbers. On
November 6, 2017, this court issued an order directing appellant to show
cause why this appeal should not be quashed because appellant failed to file
a notice of appeal in both dockets. Appellant timely responded on
November 16, 2017. On November 22, 2017, this court entered an order that
discharged the show-cause order and referred the issue to the merits panel.
Preliminarily, we note that two separate notices of appeal should have
been filed, as required by case law and the Pennsylvania Rules of Appellate
-6-
J. S06038/19
Procedure. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our
supreme court mandated that in cases where “a single order resolved issues
arising on more than one lower court docket, separate notices of appeal must
be filed. The failure to do so will result in quashal of the appeal.” Id. at 971(footnote omitted). The Walker court, however, applied its holding
prospectively to any notices of appeal filed after June 1, 2018. Id. Because
appellant filed his notice of appeal before June 1, 2018, we will proceed to
consider his appeal on the merits.
In his second issue on appeal, appellant contends that the trial court
erred when it denied his motion to suppress evidence. Specifically, appellant
takes issue with the trial court’s factual determinations that appellant fit a
flash description and that appellant’s encounter with the police occurred in a
high-crime area. (Appellant’s brief at 23.)
When addressing an appeal from a trial court’s denial of a motion to
suppress evidence, we are held to the following standard:
Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.
Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence
of the Commonwealth 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
suppression court’s factual findings are supported by
the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are
erroneous. Where . . . the appeal of the determination
-7-
J. S06038/19
of the suppression court turns on allegations of legal
error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013), quoting Commonwealth v.
Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012), appeal denied, 57 A.3d
68 (Pa. 2012) (citations omitted).
Fourth Amendment jurisprudence has led to the
development of three categories of interactions
between citizens and the police. The first of these is
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 a 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. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations
omitted).
“The appellate courts have mandated that law enforcement officers,
prior to subjecting a citizen to an investigatory detention, must harbor at least
a reasonable suspicion that the person seized is then engaged in unlawful
activity.” Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super. 2005)
(citation omitted). “Reasonable suspicion is a less demanding standard than
probable cause because it can be established by information that is different
-8-
J. S06038/19
in quantity and quality than that required for probable cause; it can arise from
information that is less reliable than that required to show probable cause.”
Commonwealth v. Emeigh, 905 A.2d 995, 998 (Pa.Super. 2006) (citation
omitted).
To meet the standard of reasonable suspicion, “the
officer must point to specific and articulable facts
which, together with the rational inferences
therefrom, reasonably warrant the intrusion. In
ascertaining the existence of reasonable suspicion, we
must look to the totality of the circumstances to
determine whether the officer had reasonable
suspicion that criminal activity was afoot.” Barber,
supra at 593 (citations and quotations omitted).
Further, “police officers need not personally observe
the illegal or suspicious conduct, but may rely upon
the information of third parties, including ‘tips’ from
citizens.” Id.
Commonwealth v. Smith, 904 A.2d 30, 35-36 (Pa.Super. 2006).
In cases where the police act as a result of an anonymous tip, we have
required additional corroborating evidence.
While a tip can be a factor, an anonymous tip alone is
insufficient as a basis for reasonable suspicion.
[Commonwealth v.] Wimbush, 750 A.2d [807,]
811 [(Pa. 2000)]; [Commonwealth v.] Jackson,
698 A.2d [571,] 572 [(Pa. 1997)]. Such anonymous
tips must be treated with particular suspicion.
Jackson, 698 A.2d at 573. Likewise, presence in a
high crime area alone or flight alone does not form the
basis of reasonable suspicion. Commonwealth v.
Cook, [] 735 A.2d 673, 677 ([Pa.] 1999). However,
a combination of these factors may be sufficient. See
[Commonwealth v.] Zhahir, 751 A.2d [1153,] 1157
[(Pa. 2000)] (noting that suspicious conduct
corroborates an anonymous tip); Cook, 735 A.2d at
677 (stating that circumstances which alone would be
insufficient may combine to show reasonable
-9-
J. S06038/19
suspicion); []; [Commonwealth v.] Pizzaro, 723
A.2d [675,] 680 [(Pa.Super. 1998)] (finding that flight
along with presence in heavy drug-trafficking area
may demonstrate reasonable suspicion). . . . Terry
[v. Ohio], 392 U.S. [1,] 22 [(1968)] (innocent facts,
when taken together, may warrant further
investigation); Commonwealth v. Riley, 715 A.2d
1131, 1135 (Pa.Super. 1998) (“a combination of
circumstances, none of which alone would justify a
stop, may be sufficient to achieve a reasonable
suspicion”).
Commonwealth v. Leonard, 951 A.2d 393, 396-397 (Pa.Super. 2008),
quoting In the Interest of M.D., 781 A.2d 192, 196-197 (Pa.Super. 2001).
Here, the record supports the trial court’s conclusion that the police had
reasonable suspicion to stop appellant. Specifically, the record reflects that
the flash bulletin, dispatched as the result of an anonymous 911 call, included
a description of appellant. (Notes of testimony, 5/22/17 at 11.) The flash
bulletin also indicated that the individual described had a gun and was located
in the area near the 1700 block of Vineyard Street, Poplar Street, and Leland
Street. (Id. at 10.) Through his testimony, Officer Ndukwe indicated that
this was a high-crime area. (Id. at 19.) Officer Ndukwe corroborated the
information received from the flash bulletin upon his arrival at the scene. (Id.
at 13.) Officer Ndukwe also testified that immediately upon his arrival,
appellant started running. (Id. at 14-15.)
Accordingly, we find that the suppression court did not abuse its
discretion when it denied appellant’s motion to suppress. The record
demonstrates that the information provided by the anonymous 911 caller that
- 10 -
J. S06038/19
was then subsequently dispatched via the flash bulletin was independently
corroborated by the police and that the police had the requisite reasonable
suspicion in order to conduct an investigatory detention.2 Therefore, the
record supports the trial court’s factual findings, the legal conclusions drawn
from those facts are correct, and appellant’s second issue is without merit.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/19
2 Moreover, we note that unprovoked flight in a high-crime area is sufficient
to create reasonable suspicion that criminal activity is afoot for the police to
conduct a Terry stop. Commonwealth v. Washington, 51 A.3d 895, 898
(Pa.Super. 2012), citing Commonwealth v. Brown, 904 A.2d 925, 930
(Pa.Super. 2006), appeal denied, 919 A.2d 954 (Pa. 2007). Here, the record
reflects that appellant fled immediately upon Officer Ndukwe’s arrival at the
scene as soon as Officer Ndukwe opened his car door. (Notes of testimony,
5/22/17 at 14.)
- 11 -