Com. v. Aponte, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
ANGEL APONTE,
Appellant No. 2842 EDA 2014
Appeal from the Judgment of Sentence September 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001449-2014
BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 10, 2017
Appellant, Angel Aponte, appeals from the September 5, 2014
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County following a stipulated waiver trial. We affirm.
The trial court summarized the facts of the crime as follows:1
At the suppression hearing held on May 29, 2014, the
Defendant moved for suppression of the firearm recovered in his
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The issue in this case assails the trial court’s denial of Appellant’s
suppression motion. When the matter herein proceeded to a stipulated
waiver trial following the suppression hearing, the suppression testimony
was incorporated and made part of the trial record. Thus, the trial court’s
summarization of the facts utilizes the evidence presented at the
suppression hearing that ultimately was incorporated in the trial record.
See In re L.J., 79 A.3d 1073 (Pa. 2013) (scope of review in suppression
matters is confined to the suppression hearing record).
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case, claiming that the police did not have reasonable suspicion
to stop him and that his flight after that unlawful stop, resulted
in his forced abandonment of a firearm under Commonwealth v.
Matos[, 672 A.2d 769 (Pa. 1996)] and therefore, the firearm
should be suppressed. The evidence presented at the
suppression hearing can be summarized as follows.
On January 18, 2014, at approximately 8:30 p.m., Officer
[Christopher] Shevlin and his partner, Officer Gorman,[2] were in
uniform, in a marked police vehicle, on routine patrol in the 25 th
Police District, in the general area of Gurney and Mascher
Streets, Philadelphia, Pennsylvania.4 Officer Shevlin was quite
familiar with this area. He had been assigned to the 25 th District
for approximately seven (7) years and he was commonly
assigned to patrol the area of Gurney and Mascher Streets.
Officer Shevlin described the area as a high crime, high narcotics
area that generated a lot of calls. He testified that he had made
more than … 100 arrests in the area, for offenses involving
narcotics, guns and assaults. N.T. 5/29/2014 at 4-6, 11.
4
Officer Shevlin was the recorder, sitting in the
passenger seat. N.T. 5/29/2014 at 6,13.
Officers Shevlin and Gorman were traveling westbound on
Gurney Street, towards Mascher Street, when Officer Shevlin
observed a crowd and what seemed like a commotion on
Waterloo Street.5 At that time, Officer Shevlin also observed the
Defendant running eastbound on Gurney Street, towards the
police vehicle and the crowd on Waterloo Street. The Defendant
was running with his hands and arms closed. The Defendant
was approximately two car lengths from the police vehicle, and a
half block from the crowd on Waterloo Street, when he looked
directly at the police vehicle, completely stopped in the tracks of
running, turned right around and started running back towards
Mascher Street. Id. at 6-7, 8-9.
5
Officer Shevlin described the crowd as “an
abnormally large amount of people,” noting that as
they were driving [past] Waterloo Street, both he
and Officer Gorman uttered, “There’s a lot of people
____________________________________________
2
Officer Gorman’s given name is not included in the certified record.
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on that block.” [N.T., 5/29/14,] at 14. At that
point, the officers were in a state of motion—
traveling westbound on Gurney, towards Mascher.
Id. They were most likely going back to investigate
the crowd on Waterloo Street. Id.
Officer Shevlin found it suspicious that the Defendant was
running full fledged, made eye contact with the police, turned
around and ran in the opposite direction. Officer Shevlin wanted
to investigate. Officers Shevlin and Gorman turned onto
Mascher Street, where Officer Shevlin observed the Defendant
stop near a vehicle.6 The officers pulled alongside of the
Defendant, but remained in their vehicle, which was
approximately 10 feet from the Defendant. Speaking through
his car window, Officer Shevlin asked the Defendant to come
over for a second. The Defendant backed away, with his hands
close to his body. Officer Shevlin did not know if the Defendant
had anything or why he was running from the police. He
decided to exit the vehicle and investigate further. Id. at 7, 10,
15.
6
There was no indication that the officers followed
the Defendant at a high rate of speed or that they
activated their emergency lights or siren.
As Officer Shevlin opened the door of his vehicle, the
Defendant backed up further, put his hands towards his hoodie
pocket, at his front waist area, like he was holding something in
and he spontaneously stated that he did not have anything.7
Officer Shevlin began to walk closer to the Defendant and the
Defendant took off running southbound on Mascher Street.
Officer Shevlin pursued the Defendant on foot. During the
pursuit, Officer Shevlin observed the Defendant throw a heavy
chrome object, which the Defendant had pulled from the front of
his body. The object landed in a yard/alley area, making a
sound as it hit the fence. The Defendant was subsequently
apprehended. Id. at 7-8, 10-11.
7
Officer Gorman had remained seated in the police
vehicle, which was approximately 10 feet from the
Defendant[,] and neither officer had drawn [his]
weapon[]. Id. at 10-11.
Trial Court Opinion, 1/14/16, at 2–3 (one footnote omitted).
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The trial court summarized the procedural history as follows:
On January 18, 2014, Angel Aponte (the Defendant) was
arrested and charged with possession of a firearm prohibited,
firearm not to be carried without a license and carrying a firearm
in public.1 On April 22, 2014, the Defendant filed a motion to
suppress the firearm recovered in association with his case.
Following a hearing on the motion and a stipulated waiver trial
held on May 29, 2014, this [c]ourt found the Defendant guilty of
the all crimes charged.2 On September 5, 2014, this [c]ourt
sentenced the Defendant to five to ten years of incarceration for
the crime of possession of a firearm prohibited, with no further
penalty imposed on the remaining two crimes. On October 3,
2014, the Defendant filed a notice of appeal. On November 7,
2014, this [c]ourt filed a 1925(b) Order. On December 1, 2014,
Defendant filed a 1925(b) Statement.
1
18 [Pa.C.S.] §§ 6105, 6106[,] and 6108,
respectively.
2
At the suppression hearing, the Commonwealth
presented the testimony of Philadelphia Police Officer
Christopher Shevlin. The Defendant did not present
any evidence. N.T 5/29/2014 at 3-16. This [c]ourt
denied the Defendant’s suppression motion. Id. at
19-20. Immediately thereafter, the matter
proceeded to a stipulated waiver trial, wherein
Officer Shevlin’s testimony was incorporated and
made part of the trial record. Additionally, the
parties stipulated that the police recovered a [.]22
caliber handgun that was loaded and operable and
that the Defendant was prohibited from possessing a
firearm due to a prior conviction for possession with
intent to deliver. Id. at 20-24.
Trial Court Opinion, 1/14/16, at 1.
Appellant raises the following single issue for our review:
1. Did the [c]ourt err when it found that there was
reasonable suspicion for the officers to stop [Appellant] for
investigation when they merely saw him running in their
direction and then change direction?
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Appellant’s Brief at 4.
The standard of review an appellate court applies when considering an
order denying a suppression motion is well established.
In evaluating a suppression ruling, we consider the evidence of
the Commonwealth, as the prevailing party below, and any
evidence of the defendant that is uncontradicted when examined
in the context of the record. Commonwealth v. Sanders, 42
A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the
factual findings of the suppression court where the record
supports those findings and may only reverse when the legal
conclusions drawn from those facts are in error. Id.Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015), appeal
denied, 125 A.3d 1199 (Pa. 2015).
“‘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 investigative
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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).
At the suppression hearing, defense counsel indicated that he had no
witnesses to present.3 When the trial court requested the basis for his
suppression motion, counsel stated, inter alia: “In this case the police did
not have reasonable suspicion or probable cause to stop [Appellant] and that
his flight, after that unlawful stop, resulted in the throwing of the firearm,
which is a forced abandonment . . . .” N.T., 5/29/14, at 4.
Appellant asserts on appeal that the trial court erred in failing to
suppress the gun because Officer Shevlin “was completely unable to
articulate reasonable suspicion to stop” Appellant. Appellant’s Brief at 10.
In support, Appellant underscores Officer Shevlin’s testimony that when
Appellant saw police, he turned and ran the other way, and “it seemed
suspicious that he was running full fledged, and turned back around and ran
back the other way.” N.T., 5/29/14, at 10; Appellant’s Brief at 14.
Appellant maintains that his act of running cannot be categorized as “flight.”
Appellant’s Brief at 15.
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3
Because the defense did not present any witnesses at the suppression
hearing, “the Commonwealth’s evidence is essentially uncontradicted.”
Commonwealth v. Smith, 979 A.2d 913, 917–918 (Pa. Super. 2009).
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At the conclusion of the suppression hearing, the trial court advanced
its findings of fact, as follows:
On January 18, 2014, while in uniform and driving a marked
vehicle, Officer Shevlin, with his partner, Officer Gorman, was
operating a vehicle westbound [on Gurney Street] towards
Mascher Street, when [Officer Shevlin] observed a large crowd.
At that point, Officer Shevlin observed the defendant running
towards the crowd. The defendant appeared to look directly at
the police vehicle, turn[ed] around and r[a]n in the opposite
direction. The defendant was eventually stopped and when
Officer Shevlin asked [him] to come here, the defendant backed
up and said, I don’t have anything and then ran southbound on
Mascher Street.
Officer Shevlin observed the defendant throw a chrome
object into a yard/alley area. Officer Shevlin testified that he’s a
seven-year veteran of the 25th Police District and describes the
area of Gurney and Mascher as a high-crime, high-narcotics
area. He participated in greater than 100 arrests for narcotics,
guns, and assaults.
I find that Officer Shevlin had reasonable suspicion, as the
defendant fled in a high-crime area.
N.T., 5/29/14, at 19.
Appellant’s argument includes an inaccurate and unsupported premise,
as well as being an incomplete description of the factors evaluated by police
in pursuing Appellant. Appellant contends that police observed nothing more
than Appellant running, whereupon he changed directions. Appellant then
suggests that his subsequent abandonment of a loaded gun was coerced.
Thus, Appellant claimed that his flight was provoked by Officer Shevlin’s
approach when he had done nothing wrong. Appellant’s Brief at 6–7.
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Instead, the testimony of record established that police came upon
Appellant running at night, clutching his waist area, in a high-crime, high-
narcotics area. N.T., 5/29/14, at 5–6. Officer Shevlin acknowledged to
defense counsel that police wanted to make sure Appellant was “okay” after
observing him running at night in the area where the commotion and crowd
had formed. Id. at 15. Upon observing police, Appellant turned and ran the
other direction. Id. at 7. When Appellant turned a corner and stopped near
a vehicle, police, still in their marked police cruiser, asked Appellant to
approach. Id. When Officer Shevlin exited the cruiser and stepped toward
Appellant, Appellant moved his hands “towards his hoodie pocket in his
jacket waist in the front” and spontaneously uttered, “I don’t have
anything.” Id. As Officer Shevlin approached, Appellant “took off running,”
and Officer Shevlin pursued him on foot. Id. When Appellant turned a
corner, the officer observed Appellant discard the chrome gun that was
ultimately retrieved. Id. at 7.
Thus, the record supports the conclusion that the officers approached
Appellant to ask if he was okay as he ran near a commotion in a high-crime
location. At this point, therefore, the interaction was a mere encounter.
When police asked Appellant to speak with them, and after spontaneously
announcing he did not “have anything,” Appellant took off running. N.T.,
5/29/14, at 7. The ensuing question, then, is whether Appellant’s
unprovoked flight when coupled with his unaccompanied presence in a high-
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crime area near a commotion and crowd, gave officers reasonable suspicion
to believe criminality was afoot so as to justify an investigative detention.
In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States
Supreme Court held that a police officer is justified in reasonably suspecting
that an individual is involved in criminal activity when that individual: (1) is
present in a high crime area, as here, and (2) engages in unprovoked,
headlong flight after noticing the police. Id. at 124–125.
Our Supreme Court has discussed such circumstances in In re D.M.,
781 A.2d 1161 (Pa. 2001):
[W]e see no reason at this juncture to embrace a standard other
than that adhered to by the United States Supreme Court.
Appellant is correct that our case law has questioned the
relevancy of flight in reviewing the totality of the circumstances.
Indeed, in our original opinion in D.M., we concluded that flight
was not a factor that would weigh in favor of finding reasonable
suspicion or probable cause under the totality of the
circumstances test. [Interest of D.M., 743 A.2d 422, 426 (Pa.
1999)]. Nevertheless, this conclusion has been directly
contradicted by the United States Supreme Court’s recent
decision in Wardlow.
In Wardlow, the Chicago police sent a four-car caravan
into a high crime area to investigate drug activity. Wardlow,
528 U.S. at 121, 120 S.Ct. 673. One of the officers in the last
vehicle observed the respondent on a corner with an opaque bag
in his hand. Id. at 121–22, 120 S.Ct. 673. The respondent
looked at the officers and fled. The officers cornered the
respondent and upon exiting their car, immediately conducted a
brief pat-down search for weapons. Id. at 122, 120 S.Ct. 673.
During the pat-down search of the respondent, the officer
discovered a gun. The issue before the court was whether
sudden flight in a high crime area created a reasonable suspicion
justifying a Terry [v. Ohio, 392 U.S. 1 (1968)] stop. Id. at
123, 120 S.Ct. 673.
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In explaining that such a seizure was justified, the Court
reiterated the Terry standard and concluded that an officer
“may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.” Id. at 124, 120 S.Ct.
673. The Court acknowledged that mere presence in a high
crime area was insufficient to support a finding of reasonable
suspicion. However, a court could consider “the fact that the
stop occurred in a ‘high crime area’” in assessing the totality of
the circumstances. Id. Similarly, the Court held that
unprovoked flight could be considered among the relevant
contextual considerations, since “nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion” and
“headlong flight—wherever it occurs—is the consummate
act of evasion....” Id. Based upon respondent’s unprovoked
flight in a high crime area, the Court concluded that the officer
was justified in suspecting that criminal activity was afoot.
Following this decision, it is evident that unprovoked flight
in a high crime area is sufficient to create a reasonable suspicion
to justify a Terry stop under the Fourth Amendment. In light of
this recent case law, it is clear that our original analysis in this
case was contrary to the United States Supreme Court’s
subsequent analysis in Wardlow.
D.M., 781 A.2d at 1163–1164 (emphasis added). This Court recently
affirmed the denial of suppression where the appellant exhibited evasive,
unprovoked flight in a high crime area. Commonwealth v. McCoy, 2017
PA Super 20, ___ A.3d ___ (Pa. Super. filed January 27, 2017). We held
therein that the appellant therefore was not entitled to suppression of the
gun he discarded during his flight. Id. at *4.
We conclude that the trial court properly denied Appellant’s motion to
suppress. In assessing whether an officer had reasonable suspicion to
justify an investigatory detention, we must consider the totality of the
circumstances. Commonwealth v. Walls, 53 A.3d 889, 893 (Pa. Super.
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2012). While mere flight is not enough to constitute reasonable suspicion,
Commonwealth v. Martinez, 588 A.2d 513, 514 (Pa. Super. 1991), fleeing
from an officer may constitute the basis for reasonable suspicion in certain
instances, as a “combination of innocent facts, when taken together, may
warrant further investigation by the police officer.” Commonwealth v.
Carter, 105 A.3d 765, 772 (Pa. Super. 2014). Additionally, the court must
afford weight to an officer’s perception of the circumstances in light of the
officer’s experience. Id. at 773.
Accordingly, based upon the foregoing, we reject Appellant’s claim that
the suppression court erred by denying his motion to suppress. The totality
of the circumstances demonstrates that the police officers, in fact, had
reasonable suspicion to believe that Appellant was engaged in criminal
activity when they began their pursuit of him following his second flight in a
high crime area. As Officers Shevlin and Gorman were attempting to effect
a lawful investigatory detention at the time Officer Shevlin observed
Appellant discard his loaded gun, the seizure of the firearm was
constitutional, and Appellant’s suppression motion was properly denied.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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