Com. v. Williams, D. ( 2017 )

J-S51019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEXTER WILLIAMS,
Appellant No. 2439 EDA 2016
Appeal from the Judgment of Sentence July 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005312-2015
BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 17, 2017
Appellant, Dexter Williams, appeals from the judgment of sentence1
entered on July 19, 2016, in the Court of Common Pleas of Philadelphia
County following his conviction at a bench trial of possession of marijuana 2
and violations of the Uniform Firearms Act, carrying a firearm though
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Although Appellant identifies his appeal as lying from the order finding him
guilty, the appeal properly lies from the judgment of sentence. Therefore,
we will treat this appeal as having been properly taken from the judgment of
sentence. See Commonwealth v. O'Neill, 578 A.2d 1334, 1335 (Pa.
Super. 1990) (“In criminal cases, appeals lie from judgment of sentence
rather than from the verdict of guilt.”).
2 35 P.S. § 780-113(a)(31).
J-S51019-17
ineligible, carrying a firearm without a license, and carrying a firearm on a
public street in Philadelphia.3 We affirm.
The trial court summarized the facts as follows:
On May 8, 2015, at approximately 11:40 a.m.,
Philadelphia Highway Patrol Officer Joseph Moore received
information from his supervisor in regards to a shooting in the
area of 3400 I Street in North Philadelphia. Notes of Testimony
(“N.T.”), 2/22/2016, at 7. The call did not provide any flash
information as to the description of the suspect. Id. at 20. In
an unmarked police vehicle, Officer Moore and Officer Williams
drove northbound on 3400 H Street when Officer Moore
observed the Appellant walking north on the east side of H
Street. Id. at 7-8. The Appellant appeared to be walking
swiftly, while grabbing and adjusting his waistband in a distinct
manner. Id at 8. Behind Officer Moore’s vehicle was a marked
highway patrol vehicle, in which Officer Holmes was present in
full uniform. As he walked, the Appellant began to look over his
shoulder toward the marked police vehicle. Id. The Appellant
then stopped walking, made a U-turn and started walking
southbound toward the police vehicle. Id. The Appellant
continued walking southbound for a few steps until he proceeded
to walk onto the porch of 3429 H Street. While walking up the
porch the Appellant continued to tug and adjust his waistband.
Id. at 9.
Due to the Appellant’s movements, Officer Moore, Officer
Williams and Officer Holmes exited their respective vehicles to
further investigate. Id. at 10. Officer Moore then told the
Appellant to stop and show his hands. Id. at 16. [Appellant]
said something to the effect of, “I didn’t do anything.” Id.
Officer Moore observed a juice container in the Appellant’s hand
and a “small black object” in the other. Id. The Appellant
opened the screen door of the porch and wedged himself
between the screen door and the front entry door of the
residence. Id. The Officers were unable to view the Appellant’s
hands while he was in between the doors of the porch. The
Officers continued to instruct the Appellant to show his hands.
____________________________________________
3 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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After the Appellant failed to comply with commands, the Officers
drew their weapons and continued to instruct the Appellant to
stop what he was doing. Id. at 11. The Appellant crouched
down between the screen door and the front door of the
building. Id. While the Appellant was crouched down his hands
were out of view for a few moments.
Upon further command, the Appellant discarded a black
firearm from his right hand. Id. The Officers recovered the
firearm and placed the Appellant under arrest. Id. After
searching Appellant, the Officers recovered a clear bag
containing 12 purple-tinted jars with purple lids, each containing
a green weed and seed substance. Id. at 12. Inside the clear
bag was another clear bag with a loose green weed substance.
Id. The Officers also recovered $779 United States currency from
the Appellant’s left pants pocket. Id.
The arrest of the Appellant at 3429 H Street was
approximately a block west from where an alleged shooting
occurred an hour and a half earlier. Id. Officer Moore testified
the 3400 block of H Street is in the 24th District in the East
Division. Id. Officer Moore testified he has been a Philadelphia
Police Officer for twenty-one years, twelve of those years on
highway patrol. Id. Officer Moore stated the East Division is an
area in which a high number of violent crimes occur. In
particular, the area of H Street is an area that encounters crimes
that are “usually very violent.” Id. at 15. He stated the
neighborhood is known for gun violence, armed robberies, and
open-air narcotic sales. Id. at 14. Even when Officer Moore is
not assigned to the East Division, he is advised to conduct a
sweep of the area during his patrol. Id. He testified that he has
made hundreds of arrests for guns during his career, several
dozen of these in the East Division. Id. In addition, Officer
Moore stated that in conducting gun arrests, he has recovered
firearms from the vicinity of the person’s waistband in the
majority of cases. Id. at 15.
Trial Court Opinion, 1/27/17, at 2–4.
Appellant filed an omnibus pretrial motion, which included a motion to
suppress physical evidence, on June 15, 2015. The trial court held a
suppression hearing on February 22, 2016, and denied the motion to
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suppress physical evidence on March 22, 2016. Appellant proceeded to a
waiver trial on April 4, 2016, following which the court convicted Appellant of
all charges, as described above. The trial court sentenced Appellant on July
19, 2016, to an aggregate term of imprisonment of six and one-half to
fifteen years. Appellant filed a notice of appeal on July 26, 2016.
On August 23, 2016, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within twenty-one days. Thus, Appellant’s Pa.R.A.P. 1925(b) statement was
due on or before Tuesday, September 13, 2016. Appellant did not file his
Pa.R.A.P. 1925(b) statement until September 23, 2016. It appears the trial
court overlooked the lateness of Appellant’s filing, and it issued an opinion
pursuant to Pa.R.A.P. 1925(a) on January 27, 2017, in which it addressed
the issues raised by Appellant in his Rule 1925(b) statement. Therefore, we
need not remand. See Commonwealth v. Brown, 145 A.3d 184, 186 (Pa.
Super. 2016), appeal denied, 165 A.3d 892 (Pa. 2017) (While untimely filed
Rule 1925(b) statement often requires remand, “where the trial court
addresses the issues raised . . . , we need not remand but may address the
issues on their merits. See Commonwealth v. Thompson, 39 A.3d 335,
340 (Pa. Super. 2012).”).
Appellant raises one issue on appeal:
1. Did the suppression court/trial court err in denying
suppression where the police did not possess the necessary
factual information to stop [A]ppellant based on the totality of
the circumstances[?]
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Appellant’s Brief at 4.
We note our standard of review:
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.
We 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 conclusions based upon the facts.
Commonwealth v. McCoy, 154 A.3d 813, 815–816 (Pa. Super. 2017). We
may consider only evidence presented at the suppression hearing. In re
L.J., 79 A.3d 1073, 1085-87 (Pa. 2013). Instantly, Appellant presented no
witnesses, and the Commonwealth presented one. Therefore, the
Commonwealth’s evidence is uncontradicted. See Commonwealth v.
Runyan, 160 A.3d 831, 834 (Pa. Super. 2017) (citing Commonwealth v.
Petty, 157 A.3d 953, 955 (Pa. Super. 2017), and Commonwealth v.
Smith, 979 A.2d 913, 917–18 (Pa. Super. 2009) (The “Commonwealth’s
evidence is essentially uncontradicted” because the defense did not present
any witnesses at the suppression hearing.)).
In a three–paragraph argument, Appellant asserts that the seized
evidence should have been suppressed because police lacked “reasonable
suspicion that criminal activity was afoot and that [A]ppellant was armed
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and dangerous.” Appellant’s Brief at 8. Appellant wholly fails to refer to the
record in support of his broad statements and allegations of fact. Moreover,
he fails to develop any meaningful analysis in support of his claims. Thus,
we could find the argument waived. Commonwealth v. Woodard, 129
A.3d 480, 502 (Pa. 2015), cert. denied, 137 S.Ct. 92 (2016).
Nevertheless, we have considered Appellant’s claim, minimally-
developed though it is. Following our review of the record, we conclude that
the trial court adequately addressed Appellant’s issue in its opinion filed
pursuant to Pa.R.A.P. 1925(a) on January 27, 2017, and we affirm on its
basis. We direct the parties to attach a copy of the opinion in the event of
any future proceedings.
Judgment of sentence affirmed.
Judge Bowes joins the Memorandum.
P.J.E. Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2017
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. ', / \
Circulated 10/27/2017 02:58 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
Commonwealth of Pennsylvania CP-51-CR-0005312-2015
v.
JAN 2 7 20111
. . iUPERIOR COURT
Dexter Williams Crimma, hj)iJ~als Un :o. 2439 EDA 2016 -
FirstJudicialDistrictof · A
CP-51-CR-OOOSJ1i-2015 Comm. v. \Mliams, Dexler -- •.
Opinion
OPINION
Ehrlich, J. 11111111111111111
7894567311
W II
Dexter Williams, hereinafter Appellant, was found guilty of possession of marijuana and
three separate violations of the Uniform Firearms Act following a non-jury trial on April 4, 2016.1
Prior to trial, the Appellant litigated a motion to suppress on February 22, 2016. This court denied
the motion following testimony and argument.
Appellant was sentenced on July 19, 2016, to an aggregate term of six and Yi to fifteen
years of incarceration. A timely appeal followed.
On appeal, Appellant avers four points of error:
L On or about May 8, 2015, Police Officer Joseph Moore while on patrol in and
about the 4300 block of H Street at approximately 12:30 a.m. responded to a
shooting that occurred on I Street (a block away) and an hour and a half earlier.
2. At the moment, Police Officer Moore had no information regarding the shooter,
his/her direction of travel or description and no information regarding the
Appellant who was 6'6" tall, African-American and was wearing gray
basketball shorts and a black Nike jacket.
1
18 Pa.C.S.A. §§ 6105(a)(l), 6106(a)(l), and 6108, respectively.
l
3. Police Officer Moore also had no specific tip on particular information that the
Appellant was involved in any criminal activity when he observed him walking
Northbound on H Street.
4. The officer observed the AppeJlant adjust his waistband as he was walking up
H Street and again as he was walking up the steps of 4329 H Street, but the
officer did not see a bulge on a gun belt or anything on Appellant that resembled
a weapon.
5. The officers ordered the Appellant off of the porch which he had entered and at
times 'could and could not see his hands, the officers drew their weapons as a
result' of Appellant's non-compliance to stop and show his hands and the
Appeilant discarded his weapon which the police recovered.
6. Police Officer Moore indicated that he ordered the Appellant to stop because
he turned to avoid police and had adjusted his waistband, but that prior to telling
him to stop, the Appellant had done nothing wrong.
7. In conclusion, the Appellant's statement is that the trial court erred by failing
to gr~t Appellant's Motion to Suppress evidence and arrest as a result of an
unlawful search and seizure.
Appellant's Pa.R.A.P. 1925(b) Statement.
As wiJl be discussed below, these claims are without merit. Accordingly, no relief is due.
The Evidence
On May 8, 2015; at approximately 11:40 a.m., Philadelphia Highway Patrol Officer
Joseph Moore received information from his supervisor in regards to a shooting in the area of
3400 I Street in North Philadelphia. Notes of Testimony ("N.T."), 2/22/2016, at 7. The call did
I
not provide any flash information as to the description of the suspect. Id. at 20. In an unmarked
police vehicle, Officer Moore and Officer Williams drove northbound on 3400 H Street when
Officer Moore observed the Appellant walking north on the east side ofH Street. Id. at 7-8. The
Appellant appeared to be walking swiftly, while grabbing and adjusting his waistband in a
distinct manner. Id at 8. Behind Officer Moore's vehicle was a marked highway patrol vehicle,
2
in which Officer Holmes was present in full uniform. As he walked, the Appellant began to look
over his shoulder toward, the marked police vehicle. Id. The Appellant then stopped walking,
I
made a U-tum and started walking southbound toward the police vehicle. Id. The Appellant
continued walking southbound for a few steps until he proceeded to walk onto the porch of 3429
H Street. While walking up the porch the Appellant continued to tug and adjust his waistband.
Id. at 9.
I
Due to the Appel;lant' s movements, Officer Moore, Officer Williams and Officer Holmes
exited their respective v~hicles to further investigate. Id. at 10. Officer Moore then told the
Appellant to stop and show his hands. Id. at 16. The defendant said something to the effect of, 11!
didn't do anything." Id. Officer Moore observed a juice container in the Appellant's hand and a
"small black object" in the other. Id. The Appellant opened the screen door of the porch and
wedged himself between the screen door and the front entry door of the residence. Id. The
Officers were unable to view the Appellant's hands while he was in between the doors of the
I
porch. The Officers continued to instruct the Appellant to show his hands. After the Appellant
failed to comply with commands, the Officers drew their weapons and continued to instruct the
Appellant to stop what he was doing. Id. at 11. The Appellant crouched down between the
screen door and the front door of the building. Id. While the Appellant was crouched down his
hands were out of view for a few moments.
Upon further command, the Appellant discarded a black firearm from his right hand. Id.
The Officers recovered the firearm and placed the Appellant under arrest. Id. After searching
Appellant, the Officers recovered a clear bag containing 12 purple-tinted jars with purple lids,
each containing a green weed and seed substance. Id. at 12. Inside the clear bag was another
.3
. '
clear bag with a loose green weed substance. Id. The Officers also recovered $779 United States
currency from the Appellant's left pants pocket. Id.
The arrest of the Appellant at 3429 H Street was approximately a block west from where
an alleged shooting occurred an hour and a half earlier. Id. Officer Moore testified the 3400
block of H Street is in the 24th District in the East Division. Id. Officer Moore testified he has
been a Philadelphia Police Officer for twenty-one years, twelve of those years on highway patrol.
. Id. Officer Moore stated the East Division is an area in which a high number of violent crimes
occur. In particular, the area of H Street is an area that encounters crimes that are "usually very
violent." Id. at 15. He stated the neighborhood is known for gun violence, armed robberies, and
open-air narcotic sales. Id. at 14. Even when Officer Moore is not assigned to the East Division,
he is advised to conduct a sweep of the area during his patrol. Id. He testified that he has made
hundreds of arrests for guns during his career, several dozen of these in the East Division. Id. In
addition, Officer Moore stated that in conducting gun arrests, he has recovered firearms from the
vicinity of the person's waistband in the majority of cases. Id. at 15.
Discussion
Appellant asserts that the initial stop and search by police was unlawful, and all evidence
should have been suppressed.
In addressing pedestrian stops by police officers, the Supreme Court of the United Sates
determined that "there must be a narrowly drawn authority to permit a reasonable search for
weapons for the protection of the police officer, where he has reason to believe that he is dealing
with an armed and dangerous individual." Terry v. Ohio, 392 U.S. I, 27 (l 968). "When conducting
a Terry analysis, it is incumbent on the suppression court to inquire, based on all of the
circumstances known to the officer ex ante, whether an objective basis for the seizure was present."
4
• I
Commonwealth v. Carter, I 05 A.3d 765, 769 (Pa. Super. 2014). In order to justify the seizure, a
police officer must be able to point to "specific and articulable facts" leading him to suspect
criminal activity is afoot. Terry, at 21. Courts are required to look at the totality of the
circumstances in order to determine whether the officers had reasonable suspicion for a stop.
Commonwealth v. Dixon, 997 A.2d 368, 380 (Pa. Super. 2010). In assessing the totality of the
circumstances, courts must also afford due weight to the specific, reasonable inferences drawn
from the facts in light of the officer's experience and acknowledge that innocent facts, when
considered collectively, may permit the investigative detention. Commonwealth v. Cook, 735 A.2d
673, 676 (Pa. 1999) (citations omitted).
Pennsylvania law recognizes three levels of police encounters for search and seizure
analysis:
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 respond.
The second, an "investigative detention" must be supported by reasonable suspicion; it
subjects a suspect to a stop and period of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of arrest. Finally, an arrest or "custodial
detention" must be supported by probable cause.
Carter at *2-3 (Pa. Super. 2014) (internal citations omitted).
Brief investigative stops are permitted when law enforcement has "a particularized and objective
basis for suspecting the particular person stopped of criminal activity." Id. (citing Navarette v.
California, 134 S. Ct. 1683, 1688-90 (201~).
Evasive behavior is just one of the many factors law enforcement can draw upon to form
reasonable suspicion. In Illinois v, Wardlow, the United States Supreme Courtstated "unprovoked
flight upon noticing the police" in a high crime area is a pertinent factor in determining reasonable
suspicion. Commonwealth v. Washington, 51 A.3d 895, 898 (PA Super. 2012) (citing lllinois v.
Wardlow 528 U.S. 119, 124 (2000)).
5
In the instant case, Officer Moore received information from his supervisor of an alleged
shooting on the 3400 block of I Street. About thirty minutes after receiving the information,
Officer Moore observed Appellant on 3400 H Street, one block west of 3400 I Street. The
Appellant was seen walking swiftly while grabbing and adjusting his waistband with both hands.
After the Appellant looked over his shoulder, in the direction of Officer Moore's marked patrol
vehicle, he stopped walking. He then made a U-turn and started walking southbound, toward the
police vehicles. The police officers stopped and exited their vehicles. Again, the Appellant turned,
made eye contact with the officers and continued to tug and adjust his waistband. Officer Moore
stated the Appellant appeared evasive after noticing Officer Holmes' marked police vehicle. As
stated, after a suspect learns of police presence, one's evasive behavior is a pertinent factor in the
totality of the circumstances analysis. In this case, Appellant's actions appeared evasive as soon
as he saw Officer Ho1m1s' vehicle over his shoulder.
Officer Moore has been a Philadelphia Po1ice Officer for twenty-one years, twelve years
on highway patrol. Officer Moore testified the 3400 block of H Street is in the 24th District in the
East Division. Officer Moore stated the East Division is an area in which a high number of violent
i
crimes occur. He testified that he has made hundreds of arrests for guns during his career, several
dozen in the East Division. Even when Officer Moore is not assigned to the East Division, he is
'
advised to conduct a sweep of the area during his patrol. The neighborhood is known for gun
violence, armed robberies and open-air narcotic sales. Officer Moore stated H Street, in particular,
is a street in which "very violent" crimes occur.
Officer Moore believed the Appellant had a firearm on his person based on his actions and
the surrounding circumstances. Officer Moore spotted the Appellant a block away from where a
founded shooting occurred and within thirty minutes of his supervisor's caU. No other pedestrians
6
. '
were observed in the area. Officer Moore testified that after observing the Appellant his first
instinct was the Appellant could have a gun in his waistband. Based on Officer Moore's
experience, the waistband is a coinmon area of the body in which individuals carry and conceal
firearms. After the totality of the circumstances evolved, Officer Moore testified he was certain
the Appellant was carrying a gun due to the tugging and adjusting of the waistband. In addition,
Appellant was observed in a high crime area late at night.
Officer Moore drew upon his experience, as well as his knowledge of the area, training,
experience and observations that night, to conclude that Appellant may be involved in criminal
activity. The court found Officer Moore's observations were sufficiently specific and reliable for
him to form reasonable suspicion. The reasonable suspicion was heightened into probable cause
when Officer Moore witnessed the Appellant discard a firearm from his person.
Given the totality of the circumstances, Officer Moore's investigatory detention of
Appellant was supported by reasonable suspicion.
7
Conclusion
In summary, this court has carefully reviewed the entire record and finds no
. .
harmful, prejudicial, or reversible error and nothing to justify the granting of Appellant's request
for relief. For the reasons set forth above, the judgment of the trial court should be affirmed.
J.
8