Com. v. Alamo, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAEKWON ALAMO :
:
Appellant : No. 411 EDA 2020
Appeal from the Judgment of Sentence Entered January 23, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002455-2019
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 21, 2020
Raekwon Alamo appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following the entry of an open
guilty plea to various firearm charges and related offenses. After careful
review, we affirm.
On February 5, 2019, at 2:00 p.m., Philadelphia Police Officer Timothy
Miller of the 24th District was on routine patrol with his partner. The officers
received a radio call from their police captain regarding an individual
possessing a gun on the 2800 block of North Swanson Street. N.T.
Suppression Hearing, 8/19/19, at 4-5. The armed individual was described
as a Hispanic male with braids carrying a fanny pack that contained a gun with
an extended magazine. Id. at 6. The officers responded to the call; while
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* Retired Senior Judge assigned to the Superior Court.
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they did not initially see any individuals matching that description, Officer
Miller testified that he “did one more loop around the corner” and “as [they]
got to A and Somerset [Streets,] . . . which is one block east of 2800 North
Swanson, [he] observed a male fitting that [description walking in the middle
of] the 100 block of East Somerset.” Id. Officer Miller testified that he “drove
up alongside [the individual], rolled down [his] window, and said, “What’s up?”
Id. The male, later identified as Alamo, replied “What’s up?” to the officer.
Id. Officer Miller then stopped his police cruiser at the corner of Swanson and
Somerset Streets and was in the process of exiting the vehicle when he asked
Alamo if he would “[s]top for a minute.” Id. Alamo replied, “For what? I
didn’t do anything wrong[,]” id., and then “[a]s he’s saying that, [] t[ook] off
his fanny pack, thr[e]w it to the ground, [and] r[an] northbound on 2800
[Swanson].” Id. at 7. The officers remained in the car and proceeded to
follow Alamo, ultimately discovering him hiding underneath a pickup truck in
a breezeway at 2855 North Water Street. Id. The officers pulled Alamo out
from underneath the truck and placed him into custody. Id. Officer Miller
then radioed for backup officers to retrieve the discarded fanny pack at
Swanson and Somerset Streets. Id. The fanny pack was retrieved; inside
the bag officers recovered a gun and narcotics. Id. Officers also found seven-
hundred and seventy-two dollars in United States currency on Alamo’s person.
Id.
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Alamo was charged with possession of a firearm prohibited,1 firearms
not to be carried without a license,2 possession of a controlled substance,3
carrying firearms in public in Philadelphia,4 and possession of instruments of
crime (PIC).5 On May 13, 2019, Alamo filed a motion to suppress all physical
evidence recovered during his search and arrest. Omnibus Motion, 5/13/19,
at 1. Following a suppression hearing held on August 19, 2019, the court
denied the motion. On November 18, 2019, Alamo entered an open guilty
plea to the above-stated offenses. The court deferred sentencing, pending
the completion of a presentence investigation report. On January 23, 2020,
Alamo was sentenced to 2-4 years’ imprisonment for possession of a firearm
prohibited; no further penalty was imposed on the remaining offenses.6
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1 18 Pa.C.S.A. § 6105(a)(1).
2 18 Pa.C.S.A. § 6106(a)(1).
3 35 P.S. § 780-113(a)(16).
4 18 Pa.C.S.A. § 6108.
5 18 Pa.C.S.A. § 907(a).
6 The court’s sentencing order states that as part of the plea agreement, the
parties agreed to preserve Alamo’s appellate rights regarding his motion to
suppress. See Open Guilty Plea Sentencing Order, 1/23/20; see also Trial
Court Opinion, 2/26/20, at 2 n.1. Generally, a plea of guilty amounts to a
waiver of all defects and defenses except those concerning the jurisdiction of
the court, the legality of the sentence, and the validity of the guilty plea.
Commonwealth v. Reichle, 589 A.2d 1140 (Pa. Super. 1991). However, so
long as the limits of the agreement are plainly set forth on the record,
understood and agreed to by the parties, and approved by the trial court,
there is no impediment to the offer, acceptance, performance, or enforcement
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Alamo filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He raises the
following issue for our consideration:
Did not the [trial] court err in denying [Alamo’s] motion to
suppress physical evidence under the Fourth Amendment of the
United States Constitution and Article I, Section 8, of the
Pennsylvania Constitution where the police officer lacked
reasonable suspicion to believe that [Alamo] was engaged in any
criminal activity when he was stopped and subjected to an
investigative detention based solely on information that a Hispanic
male with braids carrying a fanny pack possessed a gun[?]
Appellant’ Brief, at 3.
When reviewing the denial of a suppression motion, our Court must
determine whether the record supports the trial court’s factual findings and
whether the legal conclusions drawn from those facts are in error.
Commonwealth v. Gray, 896 A.2d 601, 603 (Pa. Super. 2006). “This Court
may consider only the evidence of the prosecution and so much of that of the
defense that remains uncontradicted when read in the context of the entire
record.” Id. at 604 (citation omitted).
Alamo asserts that he was illegally seized when Officer Miller “subjected
him to an investigative detention without reasonable suspicion that he had
been involved in any crime” and, therefore, any evidence uncovered from the
search is the fruit of an “initial unlawful detention.” Appellant’s Brief, at 7-9.
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of such plea agreements. Commonwealth v. Parsons, 969 A.2d 1259, 1267
(Pa. Super. 2009) (en banc) (citations omitted).
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It is well-established that there are three levels of interaction between
the police and members of the public: mere encounters, investigative
detentions, and custodial detentions.7 Commonwealth v. Ellis, 662 A.2d
1043, 1047 (Pa. 1995). The term “mere encounter” refers to non-coercive
interactions with the police that do not rise to the level of a seizure of the
person under the Fourth Amendment. Commonwealth v. Bennett, 604
A.3d 276, 280 (Pa. Super. 1992). A mere encounter occurs if police simply
approach a person on a public street in order to make inquiries.
Commonwealth v. Hall, 380 A.2d 1238, 1241 (Pa. 1977). On the other
hand, a non-custodial detention or “forcible stop” occurs when a police officer
temporarily detains an individual by means of physical force or by show of
authority for investigative purposes. Commonwealth v. Williams, 429 A.2d
698, 700 (Pa. Super. 1981). In such cases, it is well-established that the
police must point to specific and articulable facts that, taken together with
rational inferences from those facts, reasonably indicate that criminal activity
may be afoot. Terry v. Ohio, 392 U.S. 1 (1968).
In order to determine whether an interaction was a mere encounter or
a non-custodial detention, “[e]ach factual situation must be examined to
determine if force was used to restrain the citizen in some way. Such force
may include ‘physical force or [a] show of authority.’” Williams, 429 A.2d at
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7 Neither party argues that the instant interaction rose to the level of a
custodial detention. Thus, we will not analyze that level of police-citizen
interaction in the instant appeal.
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701. Circumstances to consider include, but are not limited to, the following:
the number of officers present during the interaction; whether the officer
informs the citizen they are suspected of criminal activity; the officer’s
demeanor and tone of voice; the location and timing of the interaction; the
visible presence of weapons on the officer; and the questions asked.
Commonwealth v. Boswell, 721 A.2d 336, 340 (Pa. 1998).
Immediately before Alamo fled and discarded the fanny pack, the
uniformed police officers pulled their cruiser along the sidewalk where he was
walking and asked him, “What’s up?” After Alamo answered the officer with
the same question, Officer Miller stopped his car, started to exit the vehicle
and asked Alamo if he could “[s]top for a minute.” Officer Miller testified that
he never drew his weapon and never demanded or ordered Alamo to stop
during the interaction. N.T. Suppression Hearing, 8/19/19, at 9. The
suppression court found Officer Miller credible, stating “I believe the
Commonwealth—this is not enough for a Terry stop. It’s just the officer just
wanted to speak to him.” Id. at 30. See Commonwealth v. Camacho, 625
A.2d 1242, 1245 (Pa. Super. 1993). (“[C]redibility at a suppression hearing is
an important determination best resolved through the [suppression] court’s
personal observations[;] we will not reverse a suppression court’s assessment
of credibility absent clear and manifest error.”).
Under such circumstances, we find that the instant police-citizen
interaction, immediately prior to Alamo discarding the fanny pack, amounted
to a mere encounter. Ellis, supra. Officer Miller’s actions were not so
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intrusive or forceful as to constitute an investigatory detention. Bowell,
supra. Moreover, the fact that Officer Miller asked Alamo to “stop for a
minute,” as he started to exit the police cruiser,8 did not transform the
interaction from a mere encounter into a non-custodial detention. Seer
United States v. Kim, 27 F.3d 947, 950 (3d Cir. 1994) (seizure does not
occur simply because officer approaches individual and asks a few questions).
Officer Miller testified that he never demanded or ordered Alamo to stop during
the interaction. Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.
Super. 2003) (“The hallmark of [a mere encounter] is that it carries no official
compulsion to stop or respond.”) (citation omitted). See Commonwealth v.
McClease, 750 A.2d 320, 324 (Pa. Super. 2000) (“In determining whether a
‘mere encounter’ has risen to the level of an ‘investigative detention,’ the focus
of our inquiry is on whether a ‘seizure’ of the person has occurred.”).
Accordingly, Officer Miller was not required to have any level of suspicion
to conduct the interaction. Moreover, Alamo was also not required to stop or
respond when he was approached by Officer Miller. Ellis, supra. As a result,
Alamo’s action in discarding the fanny pack as he fled the area was voluntary
abandonment and not the result of unlawful police coercion. See
Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa. Super. 1998)
(contraband discarded by individual fleeing police officer are fruits of illegal
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8In fact, Officer Miller had not even exited his vehicle to talk to Alamo before
Alamo turned, fled and discarded the evidence.
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“seizure” only where officer possessed neither “probable cause” to arrest
individual nor reasonable suspicion to stop him or her; if interaction did not
amount to seizure, then contraband considered abandoned property lawfully
found by officer). See also Commonwealth v. Matos, 672 A.2d 760 (Pa.
1996) (if pursuit by police officer not seizure, then contraband discarded by
suspect considered abandoned property lawfully found by officer). Thus, the
suppression court properly admitted the fanny pack and its contents into
evidence. Bennett, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/20
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