Com. v. Ferebee, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
AMIR FEREBEE :
:
Appellant : No. 110 EDA 2018
Appeal from the Judgment of Sentence November 17, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011695-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2018
Appellant, Amir Ferebee, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
stipulated bench trial convictions for firearms not to be carried without a
license, carrying firearms on public streets or public property in Philadelphia,
and possession of a small amount of marijuana.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
December 7, 2016, at 9:37 p.m., Officer Blackburn, a 16½-year police
veteran, was on duty with his partner when they received a dispatch regarding
an armed robbery at 54th and Spruce Streets in Philadelphia, known as a high
crime area. The flash described the suspects as two black, tall, thin males,
____________________________________________
1 18 Pa.C.S.A. § 6106(a)(1); 6108; 35 P.S. § 780-113(a)(31).
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around 18 to 20 years old, wearing all black; one male wearing a black and
white striped beanie hat. Less than 15 minutes later, Officer Blackburn
observed two males matching the flash description at the intersection of 58th
and Spruce Streets, approximately four blocks from the crime scene. Officer
Blackburn stopped the men, one of whom was Appellant, and explained his
reasons for the stop. Appellant was wearing black sneakers, black pants, a
black jacket, a black hooded sweatshirt, and a black, off-white, grey/green
camouflage hat with a wavy pattern. The other male was also wearing all
black. Officer Blackburn then conducted a pat-down of Appellant, during
which the officer felt what appeared to be a gun in Appellant’s waistband.
Appellant stated: “It’s a pellet gun.” The officer removed the weapon, which
contained six live rounds. The officer also recovered numerous packets of a
green, leafy substance on Appellant’s person, which the officer suspected was
marijuana.
The Commonwealth charged Appellant with firearms not to be carried
without a license, carrying firearms on public streets or public property in
Philadelphia, and possession of a small amount of marijuana. On April 5,
2017, Appellant filed a motion to suppress. The court held a suppression
hearing on October 16, 2017, and denied relief. Appellant proceeded directly
to a stipulated bench trial, where the court convicted Appellant of all charges.
The court sentenced Appellant on November 17, 2017, to time served to six
months’ imprisonment, with immediate parole, plus 54 months’ probation for
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the conviction of firearms not to be carried without a license, and a concurrent
term of one year of probation for the conviction of carrying firearms on public
streets or public property in Philadelphia. The court imposed no further
penalty for the conviction of possession of a small amount of marijuana.
Appellant timely filed a post-sentence motion on November 27, 2017.
Following a hearing on December 12, 2017, the court denied post-sentence
relief. Appellant timely filed a notice of appeal on January 2, 2018. The court
did not order Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises the following issue for our review:
DID NOT THE TRIAL COURT ERR IN DENYING APPELLANT’S
MOTION TO SUPPRESS WHERE POLICE LACKED
REASONABLE SUSPICION TO BELIEVE APPELLANT HAD
ENGAGED IN CRIMINAL CONDUCT AT THE TIME THAT
POLICE STOPPED HIM?
(Appellant’s Brief at 3).
“Our 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.” Commonwealth v. Williams, 941 A.2d 14, 26
(Pa.Super. 2008) (en banc) (internal citations omitted).
[W]e 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 findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
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conclusions based upon the facts.
Id. at 27.
Appellant argues Officer Blackburn stopped him based on an anonymous
tip lacking sufficient corroboration. Appellant asserts Officer Blackburn
received the flash description from another officer, and Officer Blackburn could
not be certain whether the complainant was present with the officer who gave
the flash description at the time it went out over the radio. Appellant insists
the flash was vague, where it described the suspects as tall, thin, black males
wearing all black. Appellant stresses that the hat described on the radio did
not exactly match the hat Appellant was wearing at the time of the stop.
Appellant emphasizes that neither he nor his friend were acting suspicious or
evasive at the time Officer Blackburn stopped them. Appellant maintains he
was simply walking down the street at the time of the stop, and Officer
Blackburn did not observe him carrying a weapon. Appellant contends Officer
Blackburn could not stop him, even in a high-crime area, based solely on a
generic description supplied by an anonymous tip. Appellant concludes Officer
Blackburn lacked reasonable suspicion to conduct an investigatory detention
of Appellant, Appellant’s statement and the firearm and drugs recovered from
his person are “fruit of the poisonous tree,” and this Court must reverse the
order denying his suppression motion and remand for further proceedings.
We disagree.
Contacts between the police and citizenry fall within three general
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classifications:
The first level of interaction 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. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal
denied, 583 Pa. 668, 876 A.2d 392 (2005).
An investigative detention, unlike a mere encounter,
constitutes a seizure of a person and thus activates the
protections of Article 1, Section 8 of the Pennsylvania
Constitution. To institute an investigative detention, an
officer must have at least a reasonable suspicion that
criminal activity is afoot. Reasonable suspicion requires a
finding that based on the available facts, a person of
reasonable caution would believe the intrusion was
appropriate.
* * *
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led
him reasonably to conclude, in light of his experience, that
criminal activity was afoot and that the person he stopped
was involved in that activity. Therefore, the fundamental
inquiry of a reviewing court must be an objective one,
namely, whether the facts available to the officer at the
moment of intrusion warrant a [person] of reasonable
caution in the belief that the action taken was appropriate.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted).
“[T]he question of whether reasonable suspicion existed at the time of
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an investigatory detention must be answered by examining the totality of the
circumstances to determine whether there was a particularized and objective
basis for suspecting the individual stopped of criminal activity.”
Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000)
(quoting Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa.Super. 2000),
appeal denied, 565 Pa. 662, 775 A.2d 801 (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.
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, even a combination of
innocent facts, when taken together, may warrant further
investigation by the police officer.
Commonwealth v. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation
marks omitted). “[W]hether the defendant was located in a high crime
area…supports the existence of reasonable suspicion.” Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied, 605
Pa. 694, 990 A.2d 727 (2010) (internal citations omitted). “The officer may
also conduct a quick frisk for weapons if he reasonably fears that the person
with whom he is dealing may be armed and dangerous.” In re D.M., 556 Pa.
160, 164, 727 A.2d 556, 557 (1999).
“While a tip can be a factor [in determining whether reasonable
suspicion existed], an anonymous tip alone is insufficient as a basis for
reasonable suspicion.” Commonwealth v. Leonard, 951 A.2d 393, 397
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(Pa.Super. 2008). “Because an anonymous tip typically carries a low degree
of reliability, more information is usually required before investigating officers
develop the reasonable suspicion needed to support an investigatory stop of
a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.Super. 2006).
Conversely, an ordinary citizen who is an eyewitness to a crime is presumed
trustworthy. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053 (2013),
cert. denied, 572 U.S. 1048, 134 S. Ct. 1792, 188 L. Ed. 2d 761 (2014).
When an identified third party provides information to the
police, we must examine the specificity and reliability of the
information provided. The information supplied by the
informant must be specific enough to support reasonable
suspicion that criminal activity is occurring. To determine
whether the information provided is sufficient, we assess the
information under the totality of the circumstances. The
informer’s reliability, veracity, and basis of knowledge are
all relevant factors in this analysis.
Commonwealth v. Barber, 889 A.2d 587, 593-94 (Pa.Super. 2005) (quoting
Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 (Pa.Super 1999) (en
banc), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000)). See also In re
D.M., supra (holding officer had reasonable suspicion to stop appellant after
officer received radio information of gunpoint robbery involving four or five
black males, appellant and his companions matched number and race of
suspects broadcast in report, were only individuals in vicinity of robbery, and
officer stopped them in close proximity to crime scene shortly after crime; fact
that flash information gave description of suspects supplied by crime victim
and not from anonymous source imparted high degree of reliability to report;
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further, officer’s pat-down of appellant and his companions was proper where
radio call indicated suspects might be armed and dangerous).
Instantly, the trial court addressed Appellant’s suppression claim at the
conclusion of the suppression hearing, as follows:
The officers are on patrol specifically because it’s a high
crime area and they’re in the area, because of what goes
on, and the officer testified that he was brought out from
his own district for overtime due to the type of patrol and
that’s why he was in the area.
He gets a call, a radio call. The other officers, it seemed
apparent to me through the testimony that the officers were
with the complaining witness and the description of the
defendants were broadcast over the radio.
Defense brings up great weight in the description and the
one item that seems to have been in dispute was the hat.
There [were] 13, maybe 14 minutes between the radio call
and the officer’s observation. The radio call was two black
males, thin, the officer recalled tall, walking together,
shotgun robbery, all black clothes, and within minutes of
that call, within less than a five-block radius, where that call
was from, they observed [Appellant] and another black male
wearing mostly all black. He testified—and the one
defendant here [Appellant] had a cap on his head. Although
it wasn’t an exact match as was described, it did have the
colors in the cap.
The officer testified that rather than go against traffic and
to close a 25-yard gap, he went around and as soon as
[Appellant] and the other person who was with him, who
both matched the description[,] saw him, they attempted to
go inside a Chinese Store and then the officer grabbed them.
* * *
And given the fact that it was so close in time, [Appellant]
and the other person with him, so closely matched the
description, I didn’t think it was overly unreasonable for the
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officers to do what they did and to stop this gentleman and
given it was a gunpoint robbery, frisked him for their own
safety and then they found the gun. So for those reasons
I’m going to deny the motion to suppress.
* * *
[Even if the suspects were not trying to evade police when
they walked into the Chinese store,] I mean, it’s not
unreasonable so close in time for such a close match, the
description of the offenders. And listen, shotguns come in
all shapes and sizes; they’re cut, they’re long, they’re big,
they’re short, I mean, I’ve seen dozens of them. They’re all
shapes and sizes. They’re not that hard to conceal on your
person. So you have two officers coming…upon what they
believed may be possible armed robbers and based on the
testimony of the officer, I don’t think they acted
unreasonabl[y,] given the facts and circumstances and so
for those reasons I will deny the motion to suppress.
(N.T. Suppression Hearing, 10/16/17, at 42-46). The record supports the
court’s decision. See Williams, supra.
Initially, the record makes clear Officer Blackburn did not stop Appellant
and his companion based on an anonymous tip. Rather, the officer stopped
Appellant based on a flash description provided by another officer who had
responded to the crime scene and relayed the complainant’s description of the
suspects. The complainant had reported an armed robbery with use of a
shotgun and described the suspects as two black, tall, thin males, around 18
to 20 years old, wearing all black; one male wearing a black and white striped
beanie hat. Thus, the information Officer Blackburn possessed was reliable
and trustworthy. See Lyons, supra; In re D.M., supra; Barber, supra.
Additionally, Officer Blackburn stopped Appellant and his companion less than
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15 minutes after receiving the flash information and approximately four blocks
from the crime scene, in a high crime area. Appellant and his companion
matched the physical description of the suspects and were both wearing all
black. Further, Appellant was wearing a hat similar in description to one
perpetrator’s hat. Based on the totality of the circumstances, including the
officer’s 16½ years of experience on the police force, Officer Blackburn had
reasonable suspicion to stop Appellant and to conduct a pat-down for officer
safety. See In re D.M., supra; Foglia, supra; Young, supra; Cottman,
supra. Therefore, the court properly denied Appellant’s suppression motion.
Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
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