Com. v. Stansbury, S. ( 2017 )

J-S32038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEVEN STANSBURY
Appellant No. 656 EDA 2016
Appeal from the Judgment of Sentence February 16, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0002569-2015
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 14, 2017
Appellant, Steven Stansbury, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench trial convictions for possession and possession with intent to deliver a
controlled substance,1 violations of the Uniform Firearms Act,2 and
possessing an instrument of crime.3 Appellant contends the court erred by
denying his suppression motion. We affirm.
The relevant facts of this case, as set forth by the suppression court,
are as follows:
*
Former Justice specially assigned to the Superior Court.
1
35 Pa.C.S. § 780-113(a)(16), (30).
2
18 Pa.C.S. §§ 6105, 6106, 6108.
3
18 Pa.C.S. § 907(a).
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The trial testimony established that at approximately 3:37
p.m. on February 24, 2015, plain-clothed Police Officers
James Balmer and Anthony Britton responded to a radio
call of “Robbery in progress” on the 6100 block of Walnut
Street in Philadelphia. The flash information provided was
"a black male, wearing all black clothing, five foot eight
inches tall, black female, orange shirt, black jacket."
These officers observed a female fitting the flash
information standing outside of a store, soon joined by a
male, again fitting the flash description. The officers
confirmed the flash information and stopped the two
individuals for investigation, one of which was [Appellant].
When asked for identification, [Appellant] complied and
then started to flee. Officer Balmer went to grab
[Appellant], got a hold of his jacket, which [Appellant]
slipped out of and continued his flight. While running into
an alley, with the police officer about seven to ten feet
behind him, [Appellant] discarded a black and silver
handgun at the alleyway entrance. About half a block
away, on 62nd Street, Officer Balmer and Officer Seda,
another patrol officer who had just arrived at the scene,
apprehended [Appellant]. When apprehended, [Appellant]
stated that `this was his second drug and gun pinch that
he was on four years’ probation and that he was going
away for a long time.’ The robbery victims were never
located, nor the gun recovered. Officer Pablo Seda
testified that he recovered the discarded black jacket with
sixteen yellow baggies containing marijuana as well as new
and unused baggies, and two hundred and sixty five
dollars was confiscated from [Appellant]. The parties
stipulated to the chemist reports, a certificate of non
licensure, and to an expert's testimony that the marijuana
was possessed with the intent to deliver.
Suppression Ct. Op., 8/1/16, at 4-5 (citations omitted).
We also note the following testimony regarding Appellant’s police
interaction with the officers, which was elicited on cross-examination
between Appellant’s counsel and Officer Balmer:
Q. And you got out the vehicles--the vehicle and identified
yourself as police officers immediately?
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A. That's correct.
Q. Did you have a badge pulled out–
A. Correct.
Q. -and displayed? And even though the information that
you had initially was--this was a robbery in progress at
gunpoint, it's your testimony that you did not have a
weapon drawn at the time?
A. That’s correct. I did not have my weapon drawn.
Q. Did you have your hand on your weapon?
A. I don’t recall.
***
Q. Now, you said that you were told the--well, you dealt
with [Appellant] and your partner dealt with the female?
A. Correct.
Q. And-but essentially told them that you were stopping
them for investigation?
A. Correct.
Q. And you, basically, were not going to let them leave
until you resolve whether or not these people have been
involved in a robbery, correct?
A. That is correct.
Q. Now, at some point in this conversation you're having
with Mr. Stansbury, you asked him to provide you with ID,
right?
A. Yes.
Q. Which he did?
A. Correct.
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Q. And he gave you-went into his pocket and pulled out his
wallet and got his ID?
A. I don't know exactly where he pulled it from. I don't
remember. But he did hand me his ID card.
Q. Okay. Now, at this point you were-made no attempt to
frisk him for your safety or anything like that?
A. Not as of yet.
Q. Didn't seem necessary? He was being relatively
cooperative, wasn't doing anything–
A. He was being cooperative. Correct.
Q. And after he provided you with his ID, at some point
thereafter he decided he wasn't going to stay?
A. Correct.
Q. Now, when he made that decision, were you holding
onto him in any way?
A. I believe I had his ID in my hand. I was not holding on
to him.
Q. His jacket came off?
A. When he started to run, I grabbed his jacket.
Q. Well, you grabbed him, presumably?
A. His jacket, he spun out of it. So I had an empty jacket
in my hand.
Q. Okay. So when you grabbed his jacket, you what?
Grabbed his arm? Grabbed his –
A. I don't remember exactly where I grabbed him, but I
grabbed his jacket. He spun out of it. The jacket went to
the ground. I continued chasing him.
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N.T., 12/8/15, at 21-24.
Appellant was arrested and charged with the aforementioned crimes
on February 25, 2015. Appellant filed a motion to suppress which the trial
court denied after a suppression hearing on December 8, 2015. Appellant
proceeded immediately to a bench trial wherein he was convicted of the
above-referenced charges but acquitted of tampering with physical
evidence.4 On February 16, 2016, the court sentenced Appellant to an
aggregate term of four to eight years’ imprisonment followed by two years of
probation. Appellant timely appealed, and both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises a single issue for our review:
Did not the trial court err in denying [A]ppellant’s motion
to suppress physical evidence, where the investigating
officers, acting on an anonymous police radio call, lacked
reasonable suspicion or probable cause justifying the
detention, arrest, frisk or search of [A]ppellant, where
[A]ppellant’s flight and the recovery of marijuana and
observations of a discarded gun were the fruit of an initial
stop, and where their recovery and use at trial therefore
violated the Fourth and Fourteenth Amendments to the
United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution?
Appellant’s Brief at 3.
Appellant argues that the trial court erred by denying his suppression
motion because he was effectively “seized” from the inception of his
encounter with Officers Balmer and Britton. To this end, Appellant highlights
4
18 Pa.C.S. § 4910(1).
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Officer Balmer’s testimony where he “conceded that [A]ppellant was not free
to leave, as the officer was going to restrain him until the officer determined
whether [A]ppellant was involved in a robbery.” Id. at 19. Further,
Appellant claims that the seizure constituted an investigatory detention
which was not supported by reasonable suspicion. Appellant specifically
asserts that the anonymous caller’s report of a robbery in progress with only
a vague physical description of Appellant, was insufficient information to
establish the reasonable suspicion necessary for an investigatory detention.
Therefore, Appellant asserts, the contraband discovered in his jacket and the
gun he jettisoned during his flight, were the product of an unlawful seizure
and should have been suppressed.
When considering a challenge to a suppression motion,
[we are] limited to determining whether the suppression
court’s factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of
the Commonwealth 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 suppression
court’s factual findings are supported by the record, [the
appellate court is] bound by [those] findings and may
reverse only if the court’s legal conclusions are erroneous.
Where . . . the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts.
Thus, the conclusions of the courts below are subject to [ ]
plenary review.
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Commonwealth v. Parker, 161 A.3d 357, 361-62 (Pa. Super. 2015)
(citation omitted).
“The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d
889, 892 (Pa. Super. 2012). There are three categories of interactions
between citizens and the police:
Jurisprudence arising under both charters has led to the
development of three categories of interactions between
citizens and police. The first, a “mere encounter,” does
not require any level of suspicion or carry any official
compulsion to stop and respond. The second, an
“investigatory detention,” permits the temporary detention
of an individual if supported by reasonable suspicion. The
third is an arrest or custodial detention, which must be
supported by probable cause.
In evaluating the level of interaction, courts conduct an
objective examination of the totality of the surrounding
circumstances. . . .
The totality-of-the-circumstances test is ultimately
centered on whether the suspect has in some way been
restrained by physical force or show of coercive authority.
Under this test, no single factor controls the ultimate
conclusion as to whether a seizure occurred—to guide the
inquiry, the United States Supreme Court and [our
Supreme] Court have employed an objective test entailing
a determination of whether a reasonable person would
have felt free to leave or otherwise terminate the
encounter. What constitutes a restraint on liberty
prompting a person to conclude that he is not free to leave
will vary, not only with the particular police conduct at
issue, but also with the setting in which the conduct
occurs.
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[Our Supreme] Court and the United States Supreme
Court have repeatedly held a seizure does not occur where
officers merely approach a person in public and question
the individual or request to see identification. Officers may
request identification or question an individual so long as
the officers do not convey a message that compliance with
their requests is required. Although police may request a
person’s identification, such individual still maintains the
right to ignore the police and go about his business.
Commonwealth v. Lyles, 97 A.3d 298, 302-03 (Pa. 2014) (citations and
quotation marks omitted).
When determining whether an interaction between law enforcement
and a citizen constitutes a mere encounter or a seizure:
The pivotal inquiry in making this determination is whether
a reasonable person innocent of any crime, would have
thought he . . . is being restrained had he . . . been in the
defendant’s shoes. A Court must examine all surrounding
circumstances evidencing a show of authority or exercise
of force, including the demeanor of the police officer, the
manner of expression used by the officer in addressing the
citizen, and the content of the interrogatories or
statements. If a reasonable person would not feel free to
terminate the encounter with police and leave the scene,
then a seizure of that person has occurred.
Commonwealth v. Chambers, 55 A.3d 1208, 1215 (Pa. Super. 2012)
(citation omitted).
It is well settled that “interrogation relating to one’s identity or a
request for identification by the police does not, by itself, constitute a Fourth
Amendment seizure.” Commonwealth v. Au, 42 A.3d 1002, 1005-07 (Pa.
2012) (officer’s late night interaction with passengers in a parked car, while
on routine patrol, constituted a mere encounter even though the officer
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asked the occupants for identification); Lyles, 97 A.3d at 305-06 (officer’s
contact with defendant constituted a mere encounter when officer
approached defendant and asked for identification and wrote down the
information; officer did not brandish a weapon or threaten the defendant).
Commonwealth v. Baldwin, 147 A.3d 1200, 1204 (Pa. Super. 2016)
(officer’s interaction with defendant was a mere encounter where officer
approached defendant in a parking lot, did not activate his patrol car’s
lights/siren or physically block the path of defendant but instead asked for
defendant’s identification).
However, this Court has held that “the combination of the threatening
presence of several officers and the indication that the [defendant] was
suspected of criminal activity [requires the conclusion that] a reasonable
person would believe that he was not free to leave.” Parker, 161 A.3d at
363-64 (citations omitted) (officers’ interaction with defendant constituted
an investigatory detention because two officers were present and suggested
that defendant was suspected of criminal activity at a particular restaurant).
Further, it is beyond cavil “that where a citizen approached by a police
officer is ordered to stop . . . obviously a ‘stop’ occurs.” Commonwealth v.
Morrison,__ A.3d __, __, 2017 WL 2665151 at * 4-5 (Pa. Super. June 21,
2017) (citation omitted) (an officer’s interaction constituted an investigatory
detention rather than a mere encounter when he directed the defendant to
“stop” twice).
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Significantly here, we also recognize that a defendant’s unprovoked
flight in a high crime area is a relevant factor in determining whether officers
had the requisite probable cause to “seize” a defendant through pursuit. In
re D.M., 781 A.2d 1161, 1164-65 (Pa. 2001) (applying the totality of the
circumstances test to find that defendant’s flight from the scene together
with an anonymous tip was relevant in determining that police had
reasonable suspicion to justify an investigatory detention).
In the case sub judice, we must begin by determining whether
Appellant’s initial interaction with police constituted a mere encounter or an
investigatory detention. See Lyles, 97 A.3d at 302-03. Officers Balmer and
Britton did not make physical contact with Appellant nor did they tell him to
“stop.” See Baldwin, 147 A.3d at 1204. The officers also did not accuse
Appellant of involvement in specific criminal activity. See Parker, 161 A.3d
at 363. These factors weigh in favor of a determination that the initial
interaction was a mere encounter. See Chambers, 55 A.3d 1208, 1215
Further, the officers’ request for identification did not transform a mere
encounter into an investigatory detention. See Au, 42 A.3d at 1005; Lyles,
97 A.3d at 302-03; Baldwin, 147 A.3d at 1204.
The crux of Appellant’s argument lies in his contention that Officer
Balmer admitted at trial that he did not intend to let Appellant leave until he
resolved whether Appellant was involved in a robbery. However, an
objective test as to Appellant’s perception of whether he was free to leave is
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the relevant inquiry, not Officer Balmer’s subjective expectations as
formulated by defense counsel. See Lyles, 97 A.3d at 302-03; Chambers,
55 A.3d at 1215. Thus, we conclude that under the totality of the
circumstances, Appellant’s initial interaction with the officers constituted a
mere encounter, which did not require reasonable suspicion. Moreover, we
conclude that Appellant’s sudden flight, coupled with the description
provided in the anonymous radio call, were sufficient to establish the
requisite reasonable suspicion the officer needed to pursue Appellant. See
In re D.M., 781 A.2d at 1164-65. Therefore, we hold that the contraband
discarded during Appellant’s flight was not recovered incident to an unlawful
seizure and the trial court properly denied Appellant’s motion to suppress
this evidence. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2017
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