Com. v. Strickland, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD J. STRICKLAND,
Appellant No. 1493 EDA 2014
Appeal from the Judgment of Sentence Entered May 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013882-2011
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 01, 2016
Appellant, Edward J. Strickland, appeals from the judgment of
sentence of 4 to 8 years’ incarceration, followed by 5 years’ probation,
imposed after he was convicted of possession of a firearm by a person
prohibited, 18 Pa.C.S. § 6105(a)(1), carrying a firearm without a license, 18
Pa.C.S. § 6106(a)(1), and carrying a firearm in public in Philadelphia, 18
Pa.C.S. § 6108. Appellant solely challenges the court’s denial of his pretrial
motion to suppress. After careful review, we affirm.
Appellant was arrested and charged with the above-stated firearm
offenses on November 23, 2011. Prior to trial, he filed a motion to suppress
the seized firearm, contending that the arresting police officer did not
possess reasonable suspicion to conduct an investigative detention and pat-
down of his person, during which the officer discovered a gun in his
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waistband. A suppression hearing was conducted on November 15, 2012,
and the court subsequently issued an order denying Appellant’s motion to
suppress. His case proceeded to a non-jury trial in November of 2012. At
the conclusion thereof, the court convicted Appellant of the three firearm
offenses listed supra. On May 13, 2014, he was sentenced to an aggregate
term of 4 to 8 years’ imprisonment, followed by 5 years’ probation.
Appellant filed a timely notice of appeal, and also timely complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court issued a responsive opinion on
September 21, 2015. Herein, Appellant presents one question for our
review:
Did not the trial court err in denying the motion to suppress
physical evidence, insofar as there was no reasonable suspicion
that criminal activity was afoot or that [A]ppellant was armed
and dangerous at the time he was stopped and frisked?
Appellant’s Brief at 3.
To begin, we note that,
[i]n reviewing an order from a suppression court, we consider
the Commonwealth’s evidence, and only so much of the
defendant’s evidence as remains uncontradicted. We accept the
suppression court’s factual findings which are supported by the
evidence and reverse only when the court draws erroneous
conclusions from those facts.
Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).
In this case, Appellant challenges the arresting officer’s reasonable
suspicion to conduct an investigative detention and subsequent pat-down of
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his person. We begin by summarizing the evidence presented at the
suppression hearing.
Officer Janine Caserta of the Philadelphia Police Department testified
that at approximately 10:45 a.m. on November 23, 2011, she was on
routine patrol when she received a radio dispatch of an attempted break-in
at 2552 South 62nd Street. N.T. Suppression Hearing, 11/15/12, at 4, 5-6.
Officer Caserta testified that that address is in a “very high-crime area[,]”
and that “[a]t least once, maybe twice, a week there is crime -- some sort of
crime or complaint that has happened in that area.” Id. at 15. Officer
Caserta testified that she had worked in that area for ten years, and
regularly patrolled there, as she was doing that day. Id. at 16.
Along with the address of the break-in, the radio dispatch informed
Officer Caserta that the break-in was reported to 911 by a female caller who
lived on the first floor of that residence. Id. at 10. The 911-caller told
dispatch that two men had attempted to enter her residence through the
front window. Id. Officer Caserta testified that the caller provided the
following description of those men: “[T]wo black males. One black male
wearing a tan leather jacket, covering a red hoodie. The second black male
wearing all black; meaning black pants, black jacket, black hat.” Id. at 7.
Officer Caserta testified that she activated her lights and sirens and
arrived at the address in “30 seconds.” Id. at 12. There, she saw Appellant
and another man standing “a few feet away from the actual location” of the
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alleged break-in. Id. at 7. Officer Caserta observed that Appellant and his
companion “both fit the clothing description exactly.” Id. at 7.
At that point, Officer Caserta exited her car, approached Appellant and
his companion, and asked them, “what’s up?” Id. at 13, 14. Appellant’s
companion replied that he was dropping off diapers to the mother of his
child. Id. at 15. Officer Caserta stated that she then asked Appellant and
the other man “to walk over to a vehicle, and place their hands on the
car[,]” as “they were going to be investigated.” Id. Officer Caserta testified
that Appellant “was a little fidgety[,]” and rather than keeping his hands on
the car, he kept “turning around, [and] making sudden movements.” Id. at
15.
At the same time Officer Caserta was detaining Appellant, another
officer, Officer Monroe, detained and frisked Appellant’s companion. Id. at
17. During that frisk, Officer Monroe discovered a handgun in that
individual’s right front pocket. Id. at 18. Officer Caserta testified that
“[o]nce Officer Monroe notified [her] of the handgun, that’s when [she]
placed [Appellant] in handcuffs” and explained to Appellant that she was
doing so for officer safety. Id. Officer Caserta stated that because
Appellant’s cohort was armed, she suspected “that there may be another
gun.” Id. at 19. Accordingly, out of concern for her, Officer Monroe’s, and
Appellant’s safety, she patted Appellant down. Id. at 20. During the pat-
down, Officer Caserta felt in Appellant’s waistband what she immediately
knew to be the handle of a gun, based on her experience in handling
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firearms. Id. at 21-22. Officer Caserta then “recovered a .38 caliber
revolver with a long barrel, a pearl handle. And it was loaded with six live
rounds.” Id. at 20-21.
Based on this evidence, the trial court denied Appellant’s motion to
suppress, concluding that Officer Caserta possessed reasonable suspicion to
justify Appellant’s detention and pat-down.1 Before addressing Appellant’s
arguments challenging the court’s ruling, we note the following:
In Terry v. Ohio, [392 U.S. 1 (1968)], the United States
Supreme Court created an exception to the Fourth Amendment
requirement that police have probable cause before conducting a
search of a citizen. The Terry exception permits a police officer
to briefly detain a citizen for investigatory purposes if the officer
“observes unusual conduct which leads him to reasonably
conclude, in light of his experience, that criminal activity may be
afoot.” Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666
A.2d 323, 325 (Pa. Super. 1995) (citation omitted).
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1
The trial court, the Commonwealth, and Appellant all accept that Appellant
was detained by Officer Caserta when she instructed him to place his hands
on the vehicle. We agree that the officer’s command was a show of
authority that restrained Appellant’s movement, and that a reasonable
person in Appellant’s position would not have felt free to leave. Thus, an
investigative detention occurred. See Commonwealth v. Lyles, 54 A.3d
76, 79 (Pa. Super. 2012) (“To guide the critical inquiry as to whether or not
a seizure has been effected, the United States Supreme Court has devised
an objective test entailing a determination of whether, in view of all
surrounding circumstances, a reasonable person would have believed that he
was free to leave. In evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show of authority, the citizen-
subject’s movement has in some way been restrained.”) (citation omitted).
We also note that Appellant does not argue that the investigative detention
evolved into the functional equivalent of an arrest when Officer Caserta
handcuffed him prior to frisking him.
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In order for a stop and frisk to be reasonable, the police conduct
must meet two separate and distinct standards.
Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d
513, 514 (Pa. Super. 1991), appeal denied, 530 Pa. 653, 608
A.2d 29 (1992). Specifically, the police officer must have a
“reasonable, articulable suspicion” that criminal activity may be
afoot and that the suspect may be armed and dangerous.
Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa. Super.
1997), appeal denied, 555 Pa. 743, 725 A.2d 1220 (1998). See
also Commonwealth v. Robinson, 410 Pa.Super. 614, 600
A.2d 957, 959 (Pa. Super. 1991), appeal denied, 533 Pa. 599,
617 A.2d 1273 (1992).
In addressing the level of suspicion that must exist, this Court
previously stated that “it is a suspicion that is less than a
preponderance of the evidence but more than a hunch.” Shelly,
703 A.2d at 503. See also Commonwealth v. Epps, 415
Pa.Super. 231, 608 A.2d 1095, 1096 (Pa. Super. 1992). In
deciding whether reasonable suspicion was present, courts must
take into account “the totality of the circumstances—the whole
picture.” In the Interest of B.C., 453 Pa.Super. 294, 683 A.2d
919, 923 (Pa. Super. 1996), appeal granted, 557 Pa. 643, 734
A.2d 392 (1998). These circumstances are to be viewed through
the eyes of a trained officer, not an ordinary citizen.
Commonwealth v. Fink, 700 A.2d 447, 449 (Pa. Super. 1997),
appeal denied, 552 Pa. 694, 716 A.2d 1247 (1998). “We cannot
evaluate the totality of the circumstances through the grudging
eyes of hindsight nor in terms of library analysis, but as
understood by those versed in the field of law enforcement.”
Shelly, 703 A.2d at 503 (citations omitted).
Commonwealth v. Jackson, 907 A.2d 540, 543 (Pa. Super. 2006).
In this case, Appellant contends that the trial court’s decision that
Officer Caserta possessed reasonable suspicion to justify his seizure and pat-
down was legally erroneous. He stresses that at the time of the stop, he
was not doing anything illegal or suspicious. Appellant concedes that his
clothing matched the description provided by the 911-caller; he argues,
however, that “the identity and reliability of the caller were not known” to
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Officer Caserta at the time she detained him. Appellant’s Brief at 7, 11.
Thus, according to Appellant, the uncorroborated tip from the anonymous
911-caller did not carry sufficient indicia of reliability to justify his detention.
Id. at 11. In support of this argument, Appellant discusses several cases
where this Court, or our Supreme Court, found insufficient reasonable
suspicion to uphold investigative detentions premised only on
uncorroborated, anonymous tips. See, e.g., Commonwealth v. Hawkins,
692 A.2d 1068, 1070-71 (Pa. 1997) (“If the police respond to an anonymous
call that a particular person at a specified location is engaged in criminal
activity, and upon arriving at the location see a person matching the
description but nothing more, they have no certain knowledge except that
the caller accurately described someone at a particular location. … [I]n the
typical anonymous caller situation, the police will need an independent basis
to establish the requisite reasonable suspicion.”).
We need not delve into the particulars of Appellant’s argument, or
discuss Hawkins and the other cases on which he relies, as it is apparent
that Appellant’s claims are premised wholly on his conclusion that the 911-
caller in this case was anonymous. Our review of the record, and pertinent
legal authority, demonstrates that Appellant is incorrect. Although the 911-
caller was not specifically named in the radio dispatch heard by Officer
Caserta, nor identified by name at the suppression hearing, the police
(including Officer Caserta) knew the 911-caller’s address, gender, and that
she lived on the first floor of the residence. In other words, the police could
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locate the 911-caller.2 Therefore, it is apparent that the 911-caller placed
herself at a risk of prosecution if she was falsely claiming that two men,
matching the description of Appellant and his companion, had attempted to
break-in to her residence. See Commonwealth v. Jackson, 698 A.2d 571,
574 (Pa. 1997) (“[A] known informant places himself or herself at risk of
prosecution for filing a false claim if the tip is untrue, whereas an unknown
informant faces no such risk.”). Based on these facts, the 911-caller was
not ‘anonymous,’ as Appellant claims.
Because the 911-caller was known to police, her report “carried
enough indicia of reliability for the police to conduct a Terry search, even
though the same tip from an anonymous informant would likely not have
done so.” Id. Indeed, as the Commonwealth points out, our Supreme Court
has declared that, “the fact that the police radio report came from the crime
victim herself, not from an anonymous source, imparted a high degree of
reliability to the report.” In re D.M., 727 A.2d 556, 588 (Pa. 1999)
(emphasis added). Here, the 911-caller was the victim of the attempted
break-in, and her identity was essentially known (or, at least, discoverable)
by responding police officers, including Officer Caserta. Thus, the 911-
caller’s report carried a strong indicia of reliability. In that report, the 911-
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2
Indeed, evidence at the suppression hearing demonstrated that responding
officers spoke to the 911-caller at the scene, and she identified Appellant
and his cohort as the men who attempted to break-in to her residence. N.T.
Suppression Hearing at 67-68, 72-73.
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caller provided descriptions of two men who had just attempted to break-in
to her residence. Officer Caserta heard those descriptions, arrived on-scene
within 30 seconds, and observed Appellant standing with another man within
feet of the 911-caller’s address. The clothing worn by both Appellant and his
cohort ‘exactly’ matched the 911-caller’s description of the suspects.
Additionally, the location in which Officer Caserta encountered Appellant was
a high-crime area. Based on the indicia of reliability of the 911-caller’s
report, and the totality of the other circumstances known to Officer Caserta,
we conclude that the officer had reasonable suspicion to detain Appellant for
further investigation.
Moreover, we also conclude that Officer Caserta possessed a
reasonable suspicion that Appellant was armed and dangerous prior to
conducting the Terry frisk of his person. This court has stated that,
[i]f, during the course of a valid investigatory stop, an officer
observes unusual and suspicious conduct on the part of the
individual which leads him to reasonably believe that the suspect
may be armed and dangerous, the officer may conduct a pat-
down of the suspect's outer garments for weapons.”
Commonwealth v. E.M./Hall, 558 Pa. 16, 735 A.2d 654, 659
(1999). In order to establish reasonable suspicion, the police
officer must articulate specific facts from which he could
reasonably infer that the individual was armed and dangerous.
See Commonwealth v. Gray, 896 A.2d 601, 606 (Pa. Super.
2006).
Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa. Super. 2007)
(emphasis omitted).
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In this case, we reiterate that Appellant was detained in a “very high-
crime” area. N.T. Suppression Hearing at 15. Police responded to that area
on a weekly basis for offenses including homicides, burglaries, and “strong-
armed robberies.” Id. at 16. Appellant ‘exactly’ matched the description of
an individual who had just attempted to break-in to a residence that was
located “a few feet away” from where he was standing when Officer Caserta
arrived on the scene 30 seconds after hearing the radio dispatch. Id. at 7.
When Officer Caserta detained Appellant, he became “fidgety” and kept
“turning around, [and] making sudden movements[,]” despite the officer’s
instructions to keep his hands on the vehicle. Id. at 15. During a pat-down
of Appellant’s companion, who was suspected of having acted with Appellant
in the attempted the break-in, officers discovered a gun. Id. at 18. Officer
Caserta testified that once a firearm was recovered from that individual, she
believed it was necessary, for officer safety, to conduct a pat-down of
Appellant. Id. We conclude that under the totality of these circumstances,
Officer Caserta possessed reasonable suspicion to justify the minimally
intrusive, safety-oriented frisk of Appellant’s person.
Accordingly, we ascertain no error in the trial court’s decision to deny
Appellant’s motion to suppress.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2016
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