Com. v. Greene, D. ( 2015 )

J-S44033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DESMOND GREENE
Appellee No. 207 WDA 2015
Appeal from the Order Entered January 7, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001130-2014
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DESMOND GREENE
Appellee No. 208 WDA 2015
Appeal from the Order Entered January 7, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001299-2014
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 18, 2015
The Commonwealth appeals from the order entered in the Court of
Common Pleas of Mercer County granting Desmond Greene’s motion to
suppress evidence. After careful review, we reverse and remand for further
proceedings.
J-S44033-15
The suppression court set forth the facts of this matter as follows:
Officer Adam Zazado of the Sharon Police Department was on
patrol on July 18, 2014, in Zone 5 of the City. Zone 5 is a high
crime area. At approximately 5:30 p.m., he observed two black
males walking south through the alley leading to Morrison
Street. One had no shirt and the other was wearing jeans with a
long sleeve hoodie with the hood up. The black males glanced in
the officer’s direction and kept on walking.
It was a sunny day and the temperature was 78 degrees.
Officer Zazado drove around the block to see where the two
were headed. The two were still walking down the alley. At that
point, the officer decided he wanted to talk to the two black
males. He turned his vehicle around and drove up the alley.
When Officer Zazado entered the alley, only one of the black
males remained. It was the individual wearing the hoodie. The
officer observed that individual fidgeting with his clothing.
The officer identified this black male as [Greene].
As the officer drove toward [Greene], [Greene] began walking
east through some yards. The officer drove around the block to
get in front of [Greene].[1] He did so on South Oakland.
The officer exited his vehicle and asked [Greene] if he could talk
to him. [Greene] agreed.
As the officer was talking to [Greene], he noticed [Greene] was
pressing his legs tightly together. When asked why he was
doing so, he indicated he had to go to the bathroom. The officer
told [Greene] if he had to go to the bathroom, he could have
gone in the alley when no one was watching.
[Greene] was fidgety and avoided eye contact. In addition,
[Greene] continued to put his hands in his pants pockets even
though instructed not to do so by the officer.
____________________________________________
1
Officer Zazado actually testified that he parked his cruiser behind, not in
front of, Greene, who was continuing to walk. See N.T. Suppression
Hearing, 1/7/15, at 16.
-2-
J-S44033-15
As a result of all the above factors, the officer felt he needed to
pat-down [Greene] to determine if he was armed. He instructed
[Greene] to walk over to the officer’s cruiser so he could be
patted down. As [Greene] walked over, Office[r] Zazado saw a
large bulge in the thigh area of [Greene’s] left leg. [Greene]
was ordered to stop. A second officer, Officer Zych, who had
just arrived on the scene, articulated [Greene’s] left leg and
found a hand gun.
Trial Court Opinion, 2/24/15, at 2-3.
Greene was subsequently charged with one count each of carrying a
firearm without a license,2 possession of a firearm prohibited,3 and receiving
stolen property4 after a records search of the firearm’s serial number showed
it to be stolen.
On December 1, 2014, Greene filed an omnibus pre-trial motion and
on January 7, 2015, the suppression court held that there was no basis to
believe that criminal activity was afoot, and therefore the pat down and
discovery of Greene’s firearm was unlawful. The Commonwealth filed a
timely notice of appeal asserting that the grant of Greene’s suppression
motion would substantially handicap the prosecution, see Pa.R.A.P. 311(d),
as well as a court-ordered statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
On appeal, the Commonwealth raises the following claim:
____________________________________________
2
18 Pa.C.S. § 6106.
3
18 Pa.C.S. § 6105.
4
18 Pa.C.S. § 3925.
-3-
J-S44033-15
Whether [Officer Zazado] lacked reasonable suspicion that
criminal activity may have been afoot or that [Greene] may have
been armed and dangerous to police based upon the totality of
the circumstances that included, but were not limited to,
[Greene’s] failure to remove his hands from his pockets in a high
crime area after being told to do so?
Brief of Appellant, at 4.
Our standard of review when evaluating a suppression order is well
settled:
When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the record
supports the suppression court’s factual findings and whether
the inferences and legal conclusions drawn by the suppression
court from those findings are appropriate. Where the [appellee]
prevailed in the suppression court, we may consider only the
evidence of the [appellee] and so much of the evidence for the
Commonwealth as remains uncontradicted when read in the
context of the record as a whole. Where the record supports the
factual findings of the suppression court, we are bound by those
facts and may reverse only if the legal conclusions drawn
therefrom are in error. However, where the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s conclusions of law are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Walls, 53 A.3d 889, 892 (Pa. Super. 2012) (citations
omitted).
The Commonwealth argues that Officer Zazado possessed reasonable
suspicion that criminal activity was afoot and that Greene was armed and
dangerous. The Commonwealth claims that there is no dispute that Officer
Zazado’s initial contact with Greene was lawful as a mere encounter, and the
suppression court agreed. However, the Commonwealth asserts that
“Greene’s failure to keep his hands out of his pockets . . . has been held
-4-
J-S44033-15
sufficient cause to conduct a pat down” and, even if that factor alone did not
establish reasonable suspicion, the totality of the circumstances did. We
agree.
There are three categories of interactions between citizens and police:
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 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.
Commonwealth v. Mendenhall, 715 A.2d 1117, 1119 (Pa. 1998)
(citations omitted).
In order to determine whether an investigative detention has occurred,
circumstances to be examined include any which may “evidence a show of
authority or exercise of force including such subtle factors as the demeanor
of the police officer, the location of the confrontation, the manner of
expression used by the officer in addressing the citizen, and the content of
the interrogatories or statements.” Commonwealth v. Jones, 378 A.2d
835, 839-40 (Pa. 1977). After examining the circumstances, the standard to
be used is whether “a reasonable man, innocent of any crime, would have
thought [he was being restrained] had he been in the defendant’s shoes.”
Id. at 840.
To establish reasonable suspicion, an officer must “articulate specific
observations which, in conjunction with reasonable inferences derived from
-5-
J-S44033-15
those observations, led him to reasonably conclude, in light of his
experience, that criminal activity was afoot and that the person he stopped
was involved in that activity.” Commonwealth v. Basinger, 982 A.2d 121,
125 (Pa. Super. 2009), quoting Commonwealth v. Reppert, 814 A.2d
1196, 1203 (Pa. Super. 2002). In such an inquiry, the totality of the
circumstances must be considered. In re D.M., 781 A.2d 1161, 1163 (Pa.
2001). “[T]he totality of the circumstances test does not limit our inquiry to
an examination of only those facts that clearly indicate criminal conduct.
Rather, ‘even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.’” Commonwealth v.
Rogers, 849 A.2d 1185, 1189 (Pa. 2004), quoting Commonwealth v.
Cook, 735 A.2d 673, 676 (Pa. 1999). We must give “due weight . . . to the
specific reasonable inferences [the police officer] is entitled to draw from the
facts in light of his experience.” Commonwealth v. Cook, 735 A.2d 673,
676 (Pa. 1999), quoting Terry v. Ohio, 392 U.S. 1, 27 (1968).
Here, we agree with the Commonwealth and the suppression court
that Officer Zazado’s initial interaction with Greene was a mere encounter.
Officer Zazado, suspicious that Greene was wearing a hoodie on a sunny,
78-degree day, decided to investigate further. Officer Zazado took his
cruiser to the alley where Greene was walking and, as Officer Zazado began
following him (without lights or sirens), Greene began cutting through yards
of residences in the other direction. Ultimately, Officer Zazado stopped his
vehicle behind Greene as Greene continued to walk on. Officer Zazado
-6-
J-S44033-15
asked Greene if he could speak with him and Greene agreed. At this point,
Officer Zazado had made no show of authority or exercise of force such as
would cause a reasonable person to believe he was being restrained. See
id. Greene could have simply continued to walk on, unimpeded by Officer
Zazado or his vehicle, without responding to the officer’s request to speak
with him. Greene, however, agreed to speak with Officer Zazado.
As Greene’s interaction with Officer Zazado progressed, Greene began
exhibiting signs of nervousness, fidgeting with his shoes, avoiding eye
contact and awkwardly standing with his knees pressed tightly together.
Most notably, during his encounter with Officer Zazado, Greene “repeatedly
put his hands into his [pants] pockets approximately three times,” despite
Officer Zazado’s instruction to remove them. N.T. Suppression Hearing,
1/7/15, at 9.
Based on the foregoing behavior exhibited by Greene – particularly his
refusal to remove his hands from his pockets – and the fact that the
encounter was occurring in a high-crime neighborhood, Officer Zazado
testified that he became fearful for his own safety. As a result, Officer
Zazado advised Greene that he wished to pat him down. After Officer
Zazado directed Greene to walk over to his cruiser for a pat-down, Greene
unlocked his legs and began to walk, at which point Officer Zazado “saw a
large bulge in [Greene’s] left leg towards his thigh area like something fall
[sic].” Id. at 12.
-7-
J-S44033-15
The pertinent facts in Commonwealth v. Hall, 713 A.2d 650 (Pa.
Super. 1998), rev’d on other grounds, 771 A.2d 1232 (Pa. 2001), are
analogous to the matter before the Court. In that case,
[t]wo Reading police officers, patrolling in their cruiser, saw
defendant and a companion conversing in an alley near a café.
The police parked their vehicle, the conversants [sic] broke up,
and appellant approached the police car while getting his I.D.
out of his wallet and asked “Is everything all right, officer?”
After a brief exchange, the officer removed from his vehicle and
noticed Hall had his hands in his pocket. He asked if he was
armed and Hall said he was not. Hall was asked to take his
hands out of his pocket, but only removed his left hand. As the
officer came to him, Hall pivoted with his hand in his pocket.
After being asked again to remove his hand, he did, but became
confrontational and stated that he would not be searched. The
officer replied that he would not search him, but only pat him
down for weapons.
Id. at 652-53. The Court concluded that “when Hall approached with his
hand thrust in his pocket and refused to remove it, the encounter escalated
into a situation where the totality of circumstances involved a reasonable
suspicion and justified a detention to stop and frisk.” Id. at 653. Thus, “the
single factor of the defendant keeping his hand in his pocket after being
asked to remove it escalated the encounter into one of reasonable
suspicion.” Commonwealth v. Scarborough, 89 A.3d 679, 684 (Pa.
Super. 2014), citing Hall, supra.The result in Scarborough, supra, similarly militates in favor of a
finding that Officer Zazado possessed reasonable suspicion to perform a
weapons pat-down. In Scarborough, two officers were on bicycle patrol in
a high-crime area of Philadelphia when the following transpired:
-8-
J-S44033-15
The officers observed the defendant heading southbound, toward
them, . . . riding a bicycle and talking on a cellular phone. The
officers stopped the defendant in order to issue him a citation for
using the phone while operating a vehicle, in violation of a City
of [a] Philadelphia ordinance[.]
When asked, the defendant hung up his phone and placed it in
his left jacket pocket. The officers also asked for his
identification. The defendant began to behave nervously, and
put his hand in his right jacket pocket but did not withdraw it.
The officers reiterated their request for identification, and asked
the defendant to remove his hand from his right pocket. The
defendant looked around and appeared extremely nervous.
Upon being asked a second time, he removed his hand from his
right pocket.
Id. at 682. The officers proceeded to conduct a pat-down for their safety
and discovered a firearm. On appeal of the suppression court’s refusal to
exclude the firearm discovered during the pat-down, this Court emphasized
the significance of the defendant’s refusal to remove his hand from his
pocket and concluded that the police had the right to perform a weapons
frisk.
Here, as in Hall and Scarborough, we conclude that, based on the
totality of the circumstances present at the time of the interaction, when
Greene repeatedly placed his hands in his pockets despite Officer Zazado’s
instructions to remove them, Officer Zazado possessed reasonable suspicion
that Greene might be armed and dangerous. Accordingly, Officer Zazado
was justified in requesting that Greene submit to a weapons pat-down.
Thus, the suppression court erred by concluding that Officer Zazado lacked
reasonable suspicion and suppressing the evidence obtained as a result of
the pat-down.
-9-
J-S44033-15
Order reversed; case remanded for proceedings consistent with the
dictates of this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2015
- 10 -