Com. v. Mosley, G. ( 2017 )

J-A04001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE MOSLEY,
Appellant No. 222 EDA 2016
Appeal from the Judgment of Sentence December 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009149-2014
BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 31, 2017
Appellant, George Mosley, appeals from the judgment of sentence
entered on December 4, 2015, in the Court of Common Pleas of Philadelphia
County. We affirm.
The trial court made the following findings of fact in this case:
On June 26, 2014, at approximately 9:53 p.m., Philadelphia
Police Officer Jason Kochmer was on routine patrol with his
partner Officer Brian Hol[l]man[1] on the 2200 block of North
Natrona Street in the City and County of Philadelphia, PA. This
is a high crime area. In order to catch any individuals engaged
in criminal activity off-guard, the officers were driving the wrong
way on North Natrona Street. Officer Kochmer observed three
black males seated on the steps at 2218 North Natrona Street.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Officer Brian Hollman indicated at the suppression hearing that the
spelling of his last name is “Hollman.” N.T., 7/6/15, at 54.
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As the officers’ vehicle proceeded down the street, one of the
males looked in the officers’ direction, stood up, grabbed at a
bulge on his waistband, ran into a house and shut the door.
Officer Kochmer stopped his vehicle in front of the property. As
soon as Officers Kochmer and Hol[l]man got out of the vehicle,
[Appellant] made eye contact with Officer Kochmer and jumped
up. He grabbed at the pocket of his cargo pants and tried to pull
out something from his pocket. Officer Kochmer observed a
handle of a firearm. [Appellant] then ran up onto the porch of
the property and attempted to get inside. [Co-defendant Garrett
Morgan (“Morgan”)] also grabbed an enlarged bulge on the right
side of his waistband and ran up onto the porch behind
[Appellant] attempting to get inside the property. Officer
Kochmer believed the bulge to be a firearm based on his
experience. Officer Kochmer commanded [Appellant and
Morgan] to stop. When [Appellant and Morgan] failed to comply,
Officer Kochmer deployed his taser, hitting [Appellant and
Morgan]. Both [Appellant and Morgan] fell to the ground.
[Appellant] put up his hands, at which time Officer Kochmer
observed a gun sticking out of the right pocket of his cargo
shorts. [Appellant] was handcuffed. Officer Kochmer recovered
the gun from [Appellant’s] shorts and he was placed in the police
vehicle. [Co-d]efendant Morgan continued to move around and
struggle. The officers were eventually able to secure and
handcuff him. When they stood [co-d]efendant Morgan up, a
.44 revolver, 10 inches long, fell from his waistband. Officer
Hol[l]man recovered the firearm. [Co-d]efendant Morgan was
then placed in the police vehicle. When [Appellant] was
removed from the police vehicle to be searched, police officers
observed a clear sandwich baggie containing alleged narcotics
underneath where [Appellant] had been sitting. The court found
Police Officer Kochmer’s and Police Officer Hol[l]man’s testimony
credible.
Trial Court Opinion, 6/30/16, at 2-3 (internal citations omitted).
The trial court summarized the procedural history of this case as
follows:
On July 13, 2015, prior to trial, [the trial court] denied the
Motion to Suppress filed on behalf of [Appellant].1 On July 20,
2015, following a waiver trial, [the trial court] found [Appellant]
guilty of possession of firearms prohibited,2 firearms not to be
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carried without a license,3 and carrying firearms on public streets
in Philadelphia.4 On December 4, 2015, [Appellant] was
sentenced to an aggregate sentence of three and [one-]half to
seven years of incarceration and seven years of probation to be
served concurrent to incarceration.5 On January 4, 2016,
[Appellant’s] motion for reconsideration of sentence was denied.
On January 7, 2016, [Appellant] filed a timely notice of appeal.
1
The Motion to Suppress filed by [Appellant’s] co-
defendant, Garrett Morgan, was also denied on that
date.
2
Pa.C.S. 18 § 6105(a)(1)
3
Pa.C.S. 18 § 6106(a)(1)
4
Pa.C.S. 18 § 6108
5
[Appellant] was sentenced to three and [one-]half
to seven years of incarceration on the VUFA 6105
charge. He was sentenced to seven years of
probation on the VUFA 6106 charge and five years of
probation on the VUFA 6108 charge. Both sentences
of probation are to run concurrent with confinement.
Trial Court Opinion, 6/30/16, at 1.
Appellant presents the following issue for our review:
Did not the lower court err by denying [A]ppellant’s motion
to suppress physical evidence where [A]ppellant was subjected
to an illegal stop solely on the basis of his presence in a high
crime area and the suspicious behavior of another in
[A]ppellant’s presence, and all of [A]ppellant’s subsequent
actions and the recovery of a firearm were tainted by that illegal
stop?
Appellant’s Brief at 3.
With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has stated the following:
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Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
the ruling of a suppression court, we must consider only the
evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of
the record. . . . Where the record supports the 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. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). “It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.
2006). Moreover, our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. In re
L.J., 79 A.3d 1073, 1087 (Pa. 2013).
Appellant argues that the trial court erred by denying his motion to
suppress physical evidence that was obtained as the result of an illegal stop.
Appellant’s Brief at 11. Appellant claims that he was stopped solely on the
basis of his presence in a high crime area and the suspicious behavior of
another individual in Appellant’s presence. Id. Appellant contends that he
and his co-defendant were sitting outside a house on the night at issue,
when an unidentified male stood up and touched a “bulge” in his clothes and
went inside a house at the sight of the police. Id. Appellant maintains that
he and his co-defendant remained seated when officers stopped in front of
the house. Id. Appellant asserts that the officer exited his vehicle with his
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taser pointed at the two males and yelled “stop,” at which point Appellant
and his co-defendant stood up. Id. at 11-12. Appellant claims that he did
nothing more than touch the pocket of his cargo shorts. Id. at 12. After
being told to “stop,” both males attempted to gain entrance to the house but
were unsuccessful and then detained. Id. Appellant contends that because
the officer did not have reasonable suspicion that criminal activity was afoot,
the stop of Appellant was an ulawful detention and the firearm ultimately
recovered from Appellant was fruit of the unlawful detention and therefore
must be suppressed. Id.
In addressing police detentions, this Court has explained:
“‘Interaction’ between citizens and police officers, under search
and seizure law, is varied and requires different levels of
justification depending upon the nature of the interaction and
whether or not the citizen is detained.” Commonwealth v.
DeHart, 745 A.2d 633, 636 (Pa. Super. 2000). The three levels
of interaction are: mere encounter, investigative detention, and
custodial detention. Id.
A mere encounter can be any formal or informal
interaction between an officer and a citizen, but will
normally be an inquiry by the officer of a citizen.
The hallmark of this interaction is that it carries no
official compulsion to stop or respond.
In contrast, an investigative detention, by
implication, carries an official compulsion to stop and
respond, but the detention is temporary, unless it
results in the formation of probable cause for arrest,
and does not possess the coercive conditions
consistent with a formal arrest. Since this
interaction has elements of official compulsion it
requires reasonable suspicion of unlawful activity. In
further contrast, a custodial detention occurs when
the nature, duration and conditions of an
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investigative detention become so coercive as to be,
practically speaking, the functional equivalent of an
arrest.
Id. (internal citations and quotation marks omitted).
Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 664 (Pa. Super.
2015).
This Court has stated the following regarding reasonable suspicion:
[T]o establish grounds for reasonable suspicion, the officer
must 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. The question of whether reasonable suspicion
existed at the time [the officer conducted the stop] must be
answered by examining the totality of the circumstances to
determine whether the officer who initiated the stop had a
particularized and objective basis for suspecting the individual
stopped. 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 the stop warrant a man
of reasonable caution in the belief that the action taken was
appropriate.
Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa. Super. 2009)
(internal citations and quotation marks omitted; alterations in original).
Furthermore,
[t]he exclusionary rule provides that evidence obtained due to
an unconstitutional search or seizure cannot be used against a
defendant. The exclusionary rule also applies to any evidence
discovered as a result of the original illegal police conduct; such
evidence is termed “fruit of the poisonous tree.”
Commonwealth v. Williams, 2 A.3d 611, 619 (Pa. Super. 2010).
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We note that the version of events presented by Appellant in his brief
differs from the testimony set forth by the officers at the suppression
hearing. We further observe that the trial court found the officers’ testimony
to be credible. Trial Court Opinion, 6/3/13, at 3. The testimony at the
suppression hearing established the following. Philadelphia Police Officer
Joseph Kochmer testified that on June 26, 2014, around 9:53 p.m., he was
on duty with Officer Brian Hollman. N.T., 7/6/15, at 8. They were assigned
to the 22nd District, and were patrolling the 2200 block of North Natrona
Street in Philadelphia. Id. Officer Kochmer testified that the 2200 block of
North Natrona is a high-crime area, involving drugs and violence. Id. at 17-
18. The two were patrolling in full uniform in a marked police vehicle. Id.
at 9.
The officers proceeded northbound on 2200 Natrona Street. N.T.,
7/6/15, at 9. Officer Kochmer testified that as they turned on the block
“outside of 2218 Natrona, a black male stood up and grabbed at his right
side of his hip, turned and attempted to walk into the residence at 2218.”
Id. When the officers pulled in front of the residence and stopped the car,
the unidentified male took off running into the house. Id. at 10. When
Officer Kochmer opened his door to get out and stop the unidentified male,
Appellant and Morgan looked directly at Officer Kochmer and then jumped
up. Id. at 10. In jumping up, Appellant grabbed at the pocket on the right
pant leg of his cargo shorts. Id. Officer Kochmer explained that Morgan
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“grabbed at a really large bulge on his right side, turned and attempted to
flee into the house.” Id. Appellant and Morgan attempted to run into the
house, but were unable to gain access. Id. When Appellant and Morgan
first attempted to flee, Officer Kochmer “took off and started running.” Id.
Officer Kochmer further testified that when Appellant and Morgan began to
run, he ordered the two to stop. Id. at 11.
When Appellant reached the porch of the residence, he reached into
his right pocket and was attempting to remove what Officer Kochmer
suspected to be a firearm. Id. at 12, 15. At that point, Officer Kochmer
was able to see the handle of the firearm in Appellant’s pocket. Id. at 13.
Officer Kochmer testified that based upon his experience as a police officer
for six years, and his familiarity with firearms, he was able to determine that
Appellant had a firearm in his pocket. Id. at 14. Upon Appellant’s attempt
to retrieve his firearm, Officer Kochmer deployed his taser. Id. at 15. The
taser hit both Appellant and Morgan, and they fell to the ground. Id. at 15-
16. While on the ground, Appellant put his hands up and Officer Kochmer
could then see the firearm handle hanging out of Appellant’s pocket. Id. at
16. A gun was also recovered from Morgan. Id. at 16.
Appellant and Morgan were placed in the patrol car. N.T., 7/6/15, at
19. When Appellant was taken out of the car, officers discovered a hand-
tied sandwich bag containing drugs under the area where Appellant had
been seated in the patrol car. Id. at 18-19.
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Officer Brian Hollman also testified at the suppression hearing. N.T.,
7/6/15, at 55. He testified that he and his partner, Officer Kochmer, were
patrolling the 2200 block of North Natrona Street on June 26, 2014, at
approximately 9:53 p.m. Id. at 55. They were in a marked vehicle and
were dressed in full uniform. Id. at 55. While driving northbound on the
2200 block of Natrona Street, the officers observed three males sitting on
the porch of 2218 Natrona. Id. at 56. As the officers approached, one of
the males stood up and grabbed at the right side of his waistband, turned
around and started moving toward the house. Id. at 56. Upon seeing this
behavior, the officers stopped the vehicle as the male was running into the
house. Id. at 56. When Officer Kochmer opened the patrol car door, the
two remaining seated males, Appellant and Morgan, jumped up and Officer
Hollman observed Appellant grab at the pocket on the right side of his cargo
shorts. Id. at 57. Appellant turned and attempted to run into the house.
Id. at 57. Because Officer Hollman was on the passenger side of the
vehicle, he had to run around the car to get to Appellant and Morgan. Id. at
57. By the time Officer Hollman reached the two men, Officer Kochmer had
already deployed his taser on Appellant and Morgan. Id. at 57. Appellant
and Morgan fell to the ground, and Appellant proceeded to raise his hands.
Id. at 57. Officer Hollman then observed the handle of a firearm sticking
out of Appellant’s right cargo shorts pocket. Id. at 58. Appellant was
placed in the patrol car. Id. at 58. A revolver was also recovered from
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Morgan after it fell out of his waistband. Id. at 59. When Appellant was
removed from the car for a thorough pat-down, the officers found drugs in
the vehicle under the area where Appellant had been seated. Id. at 60.
The evidence of record supports the trial court’s findings. Thus, based
on the totality of circumstances, we agree with the trial court’s conclusion
that the officers had reasonable suspicion to stop Appellant. As stated
previously, the officers first stopped on Natrona Street, a known high-crime
area, after seeing the unidentified male jump up, grab at his waistband, and
flee upon their approach. This behavior was sufficient to establish
reasonable suspicion that criminal activity was afoot. “[I]t is well settled
that unprovoked flight in a high crime area is sufficient to create a
reasonable suspicion to justify an investigatory stop.” Commonwealth v.
McCoy, 2017 Pa. Super. 20, *4, ___ A.3d ___, (Pa. Super. filed January
27, 2017). See also Commonwealth v. Washington, 51 A.3d 895, 898
(Pa. Super. 2012) (“nervous, evasive behavior and headlong flight all
provoke suspicion of criminal behavior in the context of response to police
presence”).
Upon the officers stopping and opening the car door to investigate,
Appellant looked directly at the officers, jumped up and grabbed at the right
pocket on his cargo shorts, and started to run. This behavior was sufficient
to establish reasonable suspicion on the officers’ part that Appellant was
involved in criminal activity. McCoy, 2017 Pa. Super. 20, at *4;
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Washington, 51 A.3d at 898. Thus, the officers were justified in
attempting an investigatory detention of Appellant.
When Appellant began to flee, Officer Kochmer ordered him to stop.
Appellant did not comply and Officer Kochmer was forced to deploy his taser.
After being tased and falling to the ground, Appellant put his arms in the air,
and the gun became clearly visible. Thus, the reasonable suspicion
justifying the initial investigatory detention ripened into probable cause
supporting Appellant’s arrest. Accordingly, Appellant’s claim that the firearm
was obtained as the result of an unlawful detention and was therefore fruit
of the poisonous tree lacks merit. The trial court properly denied Appellant’s
motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2017
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