Com. v. Falligan, J. ( 2017 )

J-S13036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES FALLIGAN
Appellant No. 475 EDA 2016
Appeal from the Judgment of Sentence December 12, 2013
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s):CP-51-CR-0005376-2012
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 07, 2017
Appellant, James Falligan, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas.
Appellant claims he was entitled to the suppression of a firearm he was seen
discarding because he abandoned the firearm during an unlawful police
pursuit. We affirm.
The trial court summarized the factual background to this appeal as
follows:
On March 7, 2012 at approximately 10:40 p.m., while on
tactical response on routine patrol in a high crime area,
Officer [Anthony] Comitilo and his partner Officer [Alfred]
Glacken responded to a gun robbery at a laundromat in
the 200 Block of Grange Street in Philadelphia. Officer
Comitilo had been assigned to this area for ten years and
testified that he responded to gun crimes “four or five
times a week in that general area.” Through radio, the
*
Former Justice specially assigned to the Superior Court.
J-S13036-17
officers received information that the offender was “a black
male wearing all black [with a] black hoodie.” The officers
were traveling east on Grange Street and surveying the
area for offenders when they saw [Appellant]. [Appellant]
was traveling north on Howard Street crossing Grange
Street in front of the officers. [Appellant] was within one
block of the robbery. Officer Comitilo first saw [Appellant]
at a distance of “about one-hundred feet.” Officer Comitilo
testified that Defendant “matched the description to a ‘T’.”
In a marked SUV and in full uniform the officers
accelerated to catch up to [Appellant] to get a better look
at him. The officers were traveling at a speed of ten miles
per hour and accelerated to thirty miles per hour. The
speed limit on Grange Street was 25 miles per hour. The
officers did not activate their light and sirens at any time.
When the officers were forty to fifty feet away, [Appellant]
began to walk faster and then ran. [Appellant] turned into
an alleyway and the officers briefly lost sight of him. After
the officers turned into the alleyway, Officer Comitilo saw
[Appellant] enter a “recessed alleyway in the back yards of
residential homes.”[ ] At this point, Officer Comitilo saw a
gun in [Appellant’s] hand. [Appellant] threw the gun
behind a door lying in the alleyway. The officers used their
spotlight on [Appellant], who pulled out his cell phone and
walked back to the officers. [Appellant] said to the
officers: “. . . it’s just my phone, it’s just my phone.”
Officer Comitilo testified that Officer Glacken recovered the
gun from behind the door. The gun recovered was a
Taurus handgun with the serial number NWD54843.
Trial Ct. Op., 6/13/16, at 1-3 (footnote omitted).
Appellant was charged with violations of the Uniform Firearms Act.
Appellant filed an omnibus pretrial motion on June 21, 2012, seeking, inter
alia, the suppression of the firearm. The trial court convened a suppression
hearing on August 23, 2013, at which Officer Comitilo testified. The court
initially ordered that the firearm be suppressed, but vacated that order after
the Commonwealth filed a motion for reconsideration. Following a hearing
-2-
J-S13036-17
on the Commonwealth’s motion, the court denied Appellant’s motion to
suppress on August 23, 2013.
The trial court set forth the subsequent procedural history as follows:
On October 24, 2013, [Appellant] was found guilty of all
charges. On December 12, 2013, the [c]ourt sentenced
[Appellant] to two and one half to five years [of
imprisonment] on Possession of a Firearm under 18
[Pa.C.S.] § 6105(a)(1), a felony of the second degree,
three years reporting probation on Firearms Not to be
Carried Without a License, under 18 [Pa.C.S.] §
6106(a)(1), a felony of the third degree, and no further
penalty on Carrying Firearms on the Public Streets of
Philadelphia under 18 [Pa.C.S.] § 6108, a misdemeanor of
the first degree.
On May 28, 2014, [Appellant] filed a Petition under the
Post-Conviction Relief Act[, 42 Pa.C.S. §§ 9541-9546]. On
February 8, 2016, after an evidentiary hearing, the [c]ourt
reinstated [Appellant’s] direct appeal rights. On February
9, 2016, [Appellant] filed a Notice of Appeal. On February
29, 2016, [Appellant] filed a Statement of Errors
Complained of on Appeal . . . .
Id. at 1-2.
Appellant presents the following question for review:
Did the trial court err when it denied [Appellant’s] pre-trial
motion to suppress physical evidence allegedly abandoned
by [Appellant] after [Appellant] was seized by police as the
arresting officers did not have reasonable suspicion to
stop, detain or search [Appellant] at the time that that
officers began pursuing [Appellant]?
Appellant’s Brief at 5. Appellant contends that the officers seized him when
they accelerated toward him in a marked police vehicle. Further, Appellant
argues that he was seized without reasonable suspicion. Appellant thus
claims that he was entitled to suppression of the firearm because his
-3-
J-S13036-17
abandonment of the firearm was coerced by an illegal seizure. No relief is
due.
The principles governing our review are as follows:
Our standard of review when assessing a challenge to the
denial of a motion to suppress is well-established. Review
is limited to whether the record supports the suppression
court’s factual findings and whether the legal conclusions
drawn from those facts are correct. Where the record
supports the factual findings of the suppression court, we
are bound by those findings and reverse only if the court’s
legal conclusions are erroneous. When the appeal of the
determination of the suppression court turns on allegations
of legal error, the legal conclusions of the suppression
court are not binding on the appellate court, which must
determine if the law was properly applied to the facts.
An interaction between police officers and a citizen can be
classified using three categories to measure the degree of
intrusion on a case-by-case basis.
Traditionally, this Court has recognized three
categories of encounters between citizens and the
police. These categories include (1) a mere
encounter, (2) an investigative detention, and (3)
custodial detentions. The first of these, 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.
When a police officer temporarily detains an individual by
means of physical force or a show of authority, an
investigative detention has occurred. An investigative
detention constitutes a seizure of a person and activates
the protections of the Fourth Amendment and the
-4-
J-S13036-17
requirements of Terry v. Ohio, 392 U.S. 1, 5 [ ] (1968).
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. Baldwin, 147 A.3d 1200, 1202-03 (Pa. Super. 2016)
(some citations omitted).
Moreover,
due to heightened privacy considerations in Pennsylvania,
a police officer’s pursuit of a person fleeing the officer was
a seizure for purposes of Article 1, Section 8 of the
Pennsylvania Constitution. Thus, under [Commonwealth
v. Matos, 672 A.2d 769, 771 (Pa. 1996)], any contraband
discarded during the pursuit was abandoned by coercion
and “the officer must demonstrate either probable cause to
make the seizure or reasonable suspicion to stop and
frisk.”
Commonwealth v. Cook, 735 A.2d 673, 675 (Pa. 1999) (some citations
omitted).
Following our review, we agree with the trial court that Appellant was
not seized by the officers when they approached him. Officer Comitilo was
traveling east on Grange Street, when he observed Appellant walking north
-5-
J-S13036-17
on Howard Street, crossing Grange Street. Officer Comitilo accelerated his
marked police SUV and closed the distance to Appellant from one hundred
feet to forty feet. The officer then turned onto Howard Street and observed
Appellant turn west into an alleyway. The officer turned his vehicle into the
alleyway, at which time Appellant was approximately forty feet in front of
the officer and had a gun in his hand. Appellant then ducked behind a door
and reemerged carrying his cellphone. Throughout this interaction,
however, the officers did not activate their emergency lights, engage the
siren, honk the horn, or call out to Appellant. Although we appreciate that
being followed by a police vehicle may be unnerving to a reasonable person,
we discern no merit to Appellant’s initial contention that he was seized when
the officer accelerated toward him and began to follow him. See Baldwin,
147 A.3d at 1202-03. Because we conclude that the interaction was a mere
encounter, we need not determine whether there was reasonable suspicion
supporting the officer’s decision to follow Appellant into the alleyway. See
id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2017
-6-