Com. v. Gray, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTONIO GRAY, :
:
Appellant : No. 2668 EDA 2016
Appeal from the Judgment of Sentence April 29, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): MC-51-CR-0004803-2016
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 21, 2017
Antonio Gray (“Gray”) appeals from the judgment of sentence entered
in the Philadelphia Municipal Court, as confirmed by the Philadelphia Court of
Common Pleas following the denial of his Petition for writ of certiorari.1 We
vacate the Order of the common pleas court, reverse Gray’s judgment of
sentence, and discharge Gray.
1
An appellant convicted in the municipal court has two appellate options:
Pennsylvania Rule of Criminal Procedure 1006(1)(a) provides
that a defendant convicted in Philadelphia Municipal Court has
the right to request either a trial de novo or file a petition for a
writ of certiorari with the Philadelphia Court of Common Pleas.
This Court has held that when a defendant files a petition for a
writ of certiorari, the Philadelphia Court of Common Pleas sits as
an appellate court.
Commonwealth v. Coleman, 19 A.3d 1111, 1118-19 (Pa. Super. 2011)
(citations omitted). A petition for writ of certiorari asks the common pleas
court to review the record made in the municipal court. Commonwealth v.
Williams, 125 A.3d 425, 431 (Pa. Super. 2015).
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During the suppression hearing, the municipal court set forth, on the
record, its findings of fact as follows:
The events bring[ing] us here today occurred [on] February 18,
2015[, at] 8:15 [p.m.,] on the 5500 block of North 5th [Street] in
Philadelphia. It’s there [that Philadelphia Police] Officer [Victor]
Rodriguez [(“Officer Rodriguez”)] and his partner were [in] full
uniform, [in a] marked patrol vehicle. [The officers] observed
[Gray] standing on the street. They went back around the block.
[Gray] was still standing there. And then after [the officers] saw
[Gray] look in the direction of their vehicle, they saw him start to
walk away. And Officer Rodriguez described in detail [that] at
the time that [Gray] was walking away, Officer Rodriguez … saw
a black object in [Gray’s] right hand, and he explained [that] he
believed that could possibly be a firearm.
[Officer Rodriguez] stopped [Gray]. [Gray] complied. [Officer
Rodriguez] asked [Gray] if he had a weapon. [Gray] is alleged
to say, [“]All I have is crack, I’m a user.[”] Based on that,
Officer Rodriguez placed [Gray] under arrest, and [a] search
incident to arrest [revealed] the black pouch[,] which contained
alleged crack.
N.T. (Suppression), 4/29/16, at 15-16.2
Gray was charged with possession of a controlled substance and
possession with intent to deliver a controlled substance.3 Gray litigated a
2
The municipal court additionally asked the prosecutor and Gray’s counsel
whether they wanted to suggest any additions or modifications to its findings
of fact, to which both replied in the negative. See N.T. (Suppression),
4/29/16, at 16.
3
The Commonwealth subsequently withdrew the charge of possession with
intent to deliver a controlled substance.
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Motion to suppress in the municipal court,4 asserting that the recovered
cocaine and his statement to Officer Rodriguez was the result of a stop that
was unsupported by reasonable suspicion or probable cause. The municipal
court denied Gray’s Motion to suppress, and the case immediately proceeded
to a stipulated bench trial in the municipal court. Gray was convicted of
possession of a controlled substance, after which the municipal court
sentenced him to one year of reporting probation.
On May 20, 2016, Gray filed a Petition for writ of certiorari in the
common pleas court, challenging the denial of his Motion to suppress.
Following a hearing, the common pleas court denied Gray’s Petition for writ
of certiorari. Gray subsequently filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal.
On appeal, Gray raises the following issue for our review: “Did not the
[common pleas] court err in denying the [M]otion to suppress the statement
and narcotics taken from [] Gray, where he was stopped without reasonable
suspicion that criminal activity was afoot[,] and the evidence subsequently
recovered should have been suppressed as the fruits of the illegal stop?”
Brief for Appellant at 3.
4
Philadelphia Rule of Criminal Procedure 630 allows a defendant or his
attorney to make an application to suppress evidence in the municipal court,
either in writing prior to trial, or orally at the time of trial. Phila. Co. Crim.
Div. R. 630(A), (B).
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In reviewing the denial of a motion to suppress, our
responsibility is to determine whether the record supports the
suppression court’s factual findings and legitimacy of the
inferences and legal conclusions drawn from those findings. If
the suppression court held for the prosecution, we consider only
the evidence of the prosecution’s witnesses and so much of the
evidence for the defense as, fairly read in the context of the
record as a whole, remains uncontradicted. When the factual
findings of the suppression court are supported by the evidence,
the appellate court may reverse if there is an error in the legal
conclusions drawn from those factual findings.
Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation
omitted).
Gray asserts that the municipal court erred in denying his Motion to
suppress the cocaine, and his statement to Officer Rodriguez, because the
stop was not supported by reasonable suspicion. Brief for Appellant at 8.
Gray claims that the objective facts possessed by Officer Rodriguez at the
time of the stop (i.e., his observation of Gray standing on the same corner
for several minutes, Gray’s movement away from the corner, and Gray’s
placement of a black object in his pocket) did not give rise to reasonable
suspicion of criminal activity. Id. at 9-10. Additionally, Gray asserts that
despite the fact that there had been recent robberies in the area, the record
is silent regarding whether weapons had been used in the robberies,
whether Gray matched the description of any suspect, or whether any
robbery suspects had been apprehended. Id. at 10. Gray contends that
Officer Rodriguez “did not describe what he saw in [Gray’s] hand from
twenty feet away[,]” and never testified that the object looked like a gun.
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Id. Gray also claims that the municipal court did not make a factual finding
that Gray intentionally turned his body in an attempt to conceal the object.
Id.
There are three categories of interactions between police and a citizen
evaluated pursuant to Article I, Section 8 of the Pennsylvania Constitution:
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 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. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation
omitted).
Here, the municipal court determined that Gray was subjected to an
investigative detention.5 See N.T. (Suppression), 4/29/16, at 16, 17, 19.
When evaluating the legality of investigative detentions, Pennsylvania has
adopted the holding of Terry v. Ohio, 392 U.S. 1 (1968), wherein the
5
In its brief, the Commonwealth argues that the interaction between Gray
and Officer Rodriguez was a mere encounter, rather than an investigative
detention. See Commonwealth’s Brief at 5-8. However, the Commonwealth
did not argue during the suppression hearing that the interaction was a mere
encounter. Additionally, during the suppression hearing, the municipal court
asked the prosecutor and Gray’s counsel whether they agreed that “in order
to stop [Gray] for investigation, we’re talking about reasonable suspicion,
not probable cause[,]” and the Commonwealth replied in the affirmative.
N.T. (Suppression), 4/29/16, at 17; see also id. at 18, 20 (wherein the
Commonwealth provided argument regarding the factors weighing in favor
of a finding of reasonable suspicion).
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United States Supreme Court held that police may conduct an investigatory
detention if they have reasonable suspicion that criminal activity is afoot.
In deciding whether reasonable suspicion exists for an
investigatory detention, the fundamental inquiry is an objective
one, 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. This
assessment, like that applicable to the determination of probable
cause, requires an evaluation of the totality of the
circumstances, with a lesser showing needed to demonstrate
reasonable suspicion in terms of both quantity or content and
reliability. Among the factors to be considered in establishing a
basis for reasonable suspicion are tips, the reliability of the
informants, time, location, and suspicious activity, including
flight.
Commonwealth v. Gray, 784 A.2d 137, 141-42 (Pa. Super. 2001)
(citations and paragraph break omitted).
During the suppression hearing, Officer Rodriguez testified that on
February 18, 2016, at approximately 8:15 p.m., he was on duty in the area
of 5500 North 5th Street in Philadelphia. See N.T. (Suppression), 4/29/16,
at 8. According to Officer Rodriguez, he and his partner were in a marked
patrol vehicle, in full uniform, and it was dark at that time. See id. at 13.
Officer Rodriguez stated that he was in the area because several robberies
had occurred within the preceding few days. See id. at 10.
Officer Rodriguez testified that, while he was driving southbound on 5th
Street, he observed Gray standing on the corner, and “he wasn’t doing
anything.” See id. at 9. Officer Rodriguez testified that when he circled the
block a few minutes later, Gray was still at the same corner. See id.
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According to Officer Rodriguez, Gray then walked eastbound on Tabor Road,
away from 5th Street, before turning around and ultimately walking north on
5th Street. See id. Officer Rodriguez testified that he noticed a black object
in Gray’s right hand. See id. at 9, 11. Officer Rodriguez also testified that,
from his position about 20 feet away from Gray, he observed Gray put the
item in his pocket. See id. at 9, 15.
At that time, Officer Rodriguez “stopped [Gray] for investigation.” Id.
at 9; see also id. at 10 (wherein Officer Rodriguez testified that he was
investigating Gray for possibly carrying a firearm). According to Officer
Rodriguez, he believed the black object could be a firearm because Gray was
walking away from the corner when he placed the object in his pocket, and
Gray had turned away from Officer Rodriguez’s view. See id. at 10.
Following the suppression hearing, the municipal court determined
that the detention was supported by reasonable suspicion. See N.T.
(Suppression), 4/29/16, at 19-20; see also id. at 17-19 (wherein the
municipal court considered the factors weighing in favor of reasonable
suspicion). The municipal court determined that the following factors weigh
in favor of reasonable suspicion: flight, although not headlong flight; Officer
Rodriguez’s observation of a black object in Gray’s hand, and his belief that
the object could be a gun; and recent robberies in the area (though the
court noted that this was not a substantial factor). See id. at 17-19. Upon
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review, we conclude that the totality of the circumstances fail to substantiate
a reasonable suspicion that Gray was engaging in criminal activity.
When Officer Rodriguez first observed Gray, he was merely standing
on the street corner, and by Officer Rodriguez’s own admission, Gray “wasn’t
doing anything.” See id. at 9. Despite a recent history of burglaries in the
surrounding blocks, Gray’s presence in that area, without more, does not
establish his involvement in criminal activity. See In re D.M., 781 A.2d
1161, 1163 (Pa. Super. 2001) (noting that mere presence in a high crime
area alone is insufficient to establish reasonable suspicion). The evidence
presented at the suppression hearing also established that Gray walked
away from the corner, rather than running or fleeing. See Commonwealth
v. Key, 789 A.2d 282, 290 (Pa. Super. 2001) (stating that “[a]n individual’s
act of merely walking away from police officers in a ‘high crime area’ is
manifestly insufficient to justify an investigative detention of that
individual.”); see also In re J.G., 860 A.2d 185, 189 (Pa. Super. 2004)
(concluding that juvenile’s presence in a “high drug area,” and his decision
to walk away from police as they approached in their vehicles, rather than
running away or turning into headlong flight, did not provide reasonable
suspicion to justify an investigatory stop). Moreover, despite being only
about 20 feet away from Gray at the time, Officer Rodriguez did not testify
that the unidentified object looked like a firearm. Rather, Officer Rodriguez’s
belief was based on the fact that Gray walked away from the corner and
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turned around, out of Officer Rodriguez’s view. See Commonwealth v.
Martinez, 588 A.2d 513, 516-17 (Pa. Super. 1991) (concluding that stop
was not supported by reasonable suspicion where defendant was seen on a
street corner after midnight; she walked away after looking in the direction
of the unmarked police vehicle; and her jacket appeared to have a “bulge” in
it). Additionally, there was no evidence presented at the suppression
hearing to suggest that Officer Rodriguez had reason to believe that Gray
was otherwise engaged in illegal activity. See N.T. (Suppression), 4/29/16,
at 21 (wherein the municipal court stated that “[t]he officer didn’t have
anything. … There’s nothing else to suggest [Gray was] armed and
dangerous[.]”). Based upon the foregoing, we conclude that Gray was
subjected to an illegal detention, without the requisite reasonable suspicion.
Further, because Gray did not make the incriminating statement until
after he was illegally detained (and he would not have made the statement
independent of being stopped by Officer Rodriguez), the statement is a
product of the initial illegality. See Commonwealth v. Wood, 833 A.2d
740, 746 (Pa. Super. 2003) (en banc) (concluding that the defendant’s
incriminating statement, which was made only after she had been detained
without reasonable suspicion, was illegally obtained). Accordingly, the
municipal court erred in failing to suppress Gray’s statement, as well as the
narcotics obtained during the subsequent search, as fruits of the illegal stop.
We therefore reverse the Order of the common pleas court denying Gray’s
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Petition for writ of certiorari, reverse Gray’s judgment of sentence, and
discharge Gray.6
Order vacated. Judgment of sentence reversed. Gray discharged.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
6
Without Gray’s statement and the narcotics seized by Officer Rodriguez
during the stop, there is no evidence supporting Gray’s convictions.
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