Com. v. Hartsfield, C. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER HARTSFIELD :
:
Appellant : No. 2799 EDA 2023
Appeal from the Judgment of Sentence Entered October 3, 2023
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003149-2022
BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.
MEMORANDUM BY BECK, J.: FILED NOVEMBER 26, 2024
Christopher Hartsfield (“Hartsfield”) appeals from the judgment of
sentence entered by the Delaware County Court of Common Pleas (“trial
court”) following his convictions of persons not to possess firearms, firearms
not to be carried without a license, resisting arrest, and flight to avoid
apprehension.1 On appeal, Hartsfield challenges the trial court’s denial of his
motion to suppress a seized firearm and the sufficiency of the evidence to
sustain his resisting arrest and flight to avoid apprehension convictions. Upon
review, we affirm the order denying the suppression motion and his judgment
of sentence as to the resisting arrest conviction but vacate his judgment of
sentence as to the flight to avoid apprehension conviction.
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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 5104, 5126(a).
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The certified record reflects the following factual and procedural
background. On April 15, 2022, at about 9:30 p.m., while on routine patrol,
City of Chester Police Officers Geoffrey Walls and Zachary Litvinenko arrived,
along with other police officers, in separate marked police vehicles to the area
of a store located at 2105 Edgemont Avenue in the City of Chester. N.T.,
1/5/2023, at 8-10, 16, 24-25.2 They had not been called to the area for any
complaints, disturbances, or criminal activity. Id. at 16, 33-35.3 As the
officers arrived in the area, they observed a group of people on the sidewalk
in front of the store, described as “loitering” by Officer Litvinenko, and decided
to stop. Id. at 28, 32, 34.
The officers saw an individual, later identified as Hartsfield, in front of
the store walking “at a normal pace” on the sidewalk towards their police
vehicles. Id. at 11, 13, 18, 26, 28, 32. As the officers parked their vehicles,
with overhead lights and sirens off, Hartsfield was facing Officer Walls about
twenty to twenty-five feet away. Id. at 12-13, 30, Ex. D-1 (Incident Report,
4/15/2022). When Officer Litvinenko first observed Hartsfield, he was “just
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2 As discussed infra, the parties stipulated at trial to the admission of the notes
of testimony of the hearing on Hartsfield’s motion to suppress. See N.T.
(Trial), 6/28/2023, Exs. C-1A (Stipulation), C-1B (N.T. (Suppression),
1/5/2023). For ease of reference, we cite directly to the notes of testimony
from the suppression hearing.
3On the date in question, the City of Chester police had received a call at
about 3:00 p.m. reporting seven shots fired in the area. Id., Ex. D-1 (Incident
Report, 4/15/2022).
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standing there”—he did not see, nor did he have any information, that
Hartsfield possessed a weapon or was engaged in any kind of criminal activity.
Id. at 35-36. While he saw Hartsfield “grab his pants,” Officer Litvinenko did
not see any object or the silhouette of an object. Id. at 37. Officer Litvinenko
approached Hartsfield because of “a city ordinance that he was loitering in the
area” and based on his experience involving “drug trafficking” and “shootings”
in the area, which he described as a “high-crime, high-drug area.” Id. at 36,
46. Officer Walls likewise did not have any information that Hartsfield was
involved in any criminal activity; he did not observe him committing any
crime; and he could not see what was on his person or inside his clothing
when he first encountered him. Id. at 18. Officer Walls did not observe any
criminal activity as Hartsfield walked toward his police vehicle. Id. at 18, 21.
Upon exiting the vehicle, Officer Walls intended to make contact with
Hartsfield to ask “what his intentions were being outside” at 9:30 p.m. that
night to see if Officer Walls “could develop reasonable suspicion for a further
encounter,” and whether there was “crime afoot.” Id. at 19-21. As soon as
Officer Walls exited his vehicle, Hartsfield turned in the opposite direction,
away from the officer. Id. at 13. Officer Walls could not recall if he said
anything to Hartfield; he may have said “hey” when he exited his vehicle or
may have “yelled stop,” but did not tell Hartsfield he was “stopped and not
free to go.” Id. at 14-15.
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Based on Hartsfield’s behavior of “immediately turning to the opposite
direction” upon seeing police and “walking quickly away” from them, Officer
Walls “stepped it up a little bit,” at which point Hartsfield “took off” by
“flee[ing] on foot” with “his hands in his jacket.” Id. at 13-14, 26, 29. Officer
Walls chased Hartsfield on foot while Officer Litvinenko pursued him in a police
vehicle. Id. at 15, 21, 30. Ultimately, Officer Litvinenko exited his vehicle,
pursued Hartsfield on foot, and deployed a taser on him. Id. at 15, 30. After
Hartsfield dropped to the ground, “there was some resisting” and the police
officers could not “get his hands,” but eventually handcuffed him. Id. at 30.
Once handcuffed, Officer Litvinenko frisked him and recovered a .9 mm
handgun from Hartsfield’s left pocket.4 Id. at 30-32, 38-43, Exs. D-1
(Incident Report, 4/15/2022), D-2 (N.T. (Preliminary Hearing), 7/11/2022, at
8, 21).
Officer Walls described the area as a “well-known hotspot” for “criminal
activity, shots fired, homicides, [and] robberies.” Id. at 8-9. He testified that
during his four and one-half-year tenure, he made “numerous” arrests in the
area and that the section of sidewalk in front of the store is “very well known”
for illegal firearms. Id. at 9, 12. Officer Litvinenko testified that he responds
to calls in the area during every shift, mostly for “loitering,” “groups in the
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4 It is unclear from the record whether Officer Litvinenko found the firearm in
the left side of the inner pocket of Hartsfield’s jacket or the left side of his
sweatshirt. See id. at 38-43.
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area,” “drug trafficking,” “fights,” and “shots fired.” Id. at 25, 33-34, 36. In
his career, he has made arrests for drug trafficking in the area and responded
to about five shootings there. Id. at 25, 34.
Based on the foregoing, the Commonwealth charged Hartsfield with the
aforementioned crimes, as well as receiving stolen property and person not to
possess/use firearms-fugitive.5 Hartsfield filed a motion to suppress physical
evidence and any statements he made to police. The trial court held a
suppression hearing on January 5, 2023, at which the Commonwealth
presented the testimony of Officers Walls and Litvinenko and a surveillance
video; Hartsfield presented the notes of testimony from his preliminary
hearing and Officer Litvinenko’s incident report. Following the hearing, the
trial court directed the parties to file briefs,6 and on April 10, 2023, the trial
court denied the motion to suppress. Hartsfield filed a motion for
reconsideration, which the trial court denied. The matter then proceeded to
a bench trial on June 28, 2023. The parties stipulated to the admission of all
trial evidence: the notes of testimony of the suppression hearing in lieu of the
testimony of Officers Walls and Litvinenko at trial; two surveillance videos on
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5 18 Pa.C.S. §§ 3925(a), 6105(c)(1).
6 Although the trial court referenced Hartsfield’s “memorandum of law” in its
findings of fact and conclusions of law denying Hartsfield’s suppression
motion, no such memorandum (or brief) appears in the certified record. See
Order Denying Motion to Suppress, 4/10/2023, at 6. The Commonwealth filed
a letter brief in opposition on April 6, 2023.
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the date at issue; the operability report of the seized firearm in lieu of
testimony from the firearms examiner; and that on the date of the incident,
Hartsfield was prohibited from possessing a firearm and did not have a permit
to possess a concealed firearm. N.T. (Trial), 6/28/2023, Exs. C-1A, C-1B, C-
2A, C-3A, C-3B, C-4A, C-4B, C-6.7 The trial court granted counsel’s motion
for a directed verdict of not guilty of receiving stolen property and person not
to possess/use firearms-fugitive. N.T. (Trial), 6/28/2023, at 9. The parties
presented no argument as to the remaining four charges and the trial court
took the stipulated evidence under advisement. See id. On June 30, 2023,
the trial court rendered its decision and on October 3, 2023, sentenced him to
an aggregate term of two and one-half to ten years in prison, with credit for
time served.8 This appeal followed.
On appeal, Hartsfield raises the following issues for our review:
1. Whether the trial court erred by denying [Hartsfield’s]
motion to suppress physical evidence where law
enforcement lacked reasonable suspicion to stop
[Hartsfield] when he was seized for an investigative
detention, in violation of the United States and Pennsylvania
Constitutions?
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7 As discussed infra, the parties did not stipulate to Exhibit C-5.
8 Specifically, the trial court sentenced Hartsfield as follows: count 1
(possession of firearm prohibited): two and one-half to ten years in prison;
count 4 (firearms not to be carried without license): two and one-half to seven
years in prison, to run concurrently with count 1; count 5 (resisting arrest):
two years of probation, to run concurrently with counts 1 and 4; and count 6
(flight to avoid apprehension): two years of probation, to run concurrently
with counts 1, 4, and 5.
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2. Whether the evidence was insufficient to establish beyond a
reasonable doubt that [Hartsfield] prevented law
enforcement from effectuating a lawful arrest, as required
to sustain his conviction for 18 Pa.C.S. § 5104?
3. Whether the evidence was insufficient to establish beyond a
reasonable doubt that [Hartsfield] had been charged with a
crime at the time of his flight, as required to sustain his
conviction for 18 Pa.C.S. § 5126?
Hartsfield’s Brief at 5.
In his first issue, Hartsfield challenges the trial court’s denial of his
motion to suppress.
On appeal from the denial of a motion to suppress evidence,
our review 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 are bound by the
suppression court’s factual findings so long as they are supported
by the record; our standard of review on questions of law is de
novo. Where, as here, the defendant is appealing the ruling of
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Lear, 290 A.3d 709, 715 (Pa. Super. 2023) (citations
omitted).
Hartsfield contends that the police officers lacked reasonable suspicion
of criminal activity to justify the seizure of his person. Hartsfield’s Brief at 10,
12. He argues that the “collective show of authority” by police as three police
vehicles pulled up to Hartsfield and Officer Walls exited his vehicle to approach
Hartsfield, along with his order to Hartsfield to stop walking away, constituted
a seizure of his person in that a reasonable person would not have believed
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he was free to leave. Id. at 10, 12, 15. Hartsfield argues that at the time of
the seizure of his person (before he began to run away), the officers lacked
reasonable suspicion to detain him because they did not observe Hartsfield
commit a crime, did not observe any objects bulging from his clothing, and
had not received any information that Hartsfield or anyone else may have
committed a crime. Id. at 10-12, 16-17. While Hartsfield acknowledges that
unprovoked flight in a high crime area gives rise to reasonable suspicion for
an investigative detention, he argues that the initial seizure occurred before
he fled, and at the time he was seized, the officers lacked reasonable suspicion
that criminal activity was afoot. Id. at 13-17.
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution guarantee
the right of the people to be secure in their persons, houses,
papers, and possessions from unreasonable searches and
seizures. To secure the right of citizens to be free from
unreasonable search and seizure, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of
suspicion to justify their interactions with citizens to the extent
those interactions compromise individual liberty. Because
interactions between law enforcement and the general citizenry
are widely varied, search and seizure law examines how the
interaction is classified and if a detention has occurred.
The focus of search and seizure law remains on the delicate
balance of protecting the right of citizens to be free from
unreasonable searches and seizures and protecting the safety of
our citizens and police officers by allowing police to make limited
intrusions on citizens while investigating crime. In assessing the
lawfulness of citizen/police encounters, a central, threshold issue
is whether the citizen-subject has been seized.
Commonwealth v. Rice, 304 A.3d 1255, 1260 (Pa. Super. 2023) (quotation
marks, brackets, ellipsis, and citations omitted).
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There are three general categories of warrantless police-citizen
interactions:
The first level of interaction 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 a 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.
Id. (brackets and citations omitted). “During a mere encounter, ‘as long as
the person to whom questions are put remains free to disregard the questions
and walk away, there has been no intrusion upon that person’s liberty or
privacy as would under the Constitution require some particularized and
objective justification.’” Id. (quoting United States v. Mendenhall, 446
U.S. 544, 554 (1980)) (brackets omitted).
“In evaluating whether an interaction constitutes a mere encounter, we
must consider all circumstances evidencing a show of authority or exercise of
force[.]” Id. A non-exhaustive list of factors relevant to the inquiry include:
the number of police officers present during the interaction; the police officer’s
demeanor, tone of voice, and manner of expression in addressing the citizen;
whether the police officer informs the citizen they are suspected of criminal
activity; the location and timing of the interaction; the visible presence of
weapons on the police officer; and the content of the questions asked or
statements made. Id. at 1260-61 (citation omitted). “Otherwise inoffensive
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contact between a member of the public and the police cannot, as a matter of
law, amount to a seizure of that person.” Id. at 1261 (internal quotation
marks and citation omitted).
Unlike a mere encounter, an investigative detention “constitutes a
seizure of a person and thus activates the protections of Article I, Section 8 of
the Pennsylvania Constitution. To institute an investigative detention, an
officer must have at least a reasonable suspicion that criminal activity is
afoot.” Id. (internal quotation marks and citation omitted).
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved in
that activity. Therefore, the fundamental inquiry of a reviewing
court must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant a
person of reasonable caution in the belief that the action taken
was appropriate.
Id. (brackets, quotation marks, and citation omitted). In evaluating whether
reasonable suspicion existed at the time of the investigative detention, we
must examine “the totality of the circumstances to determine whether there
was a particularized and objective basis for suspecting the individual stopped
of criminal activity.” Id. (citations omitted). “[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.” Id. (internal quotation marks and citation omitted).
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Instantly, the trial court found the following facts:
1. On April 5, 2022, at approximately 10:20 PM, [Hartsfield]
was walking towards 21st Street in the direction of Officer [Walls’]
vehicle.[9]
2. As Officer Walls exits his vehicle, [Hartsfield] abruptly turns
and begins to walk away, taking approximately 4-5 steps.
[Hartsfield] then breaks into a full sprint away from Officer Walls.
3. Officer [Walls’] police vehicle overhead lights were not
flashing at the time [Hartsfield] turned and then ran away.
4. Officers Walls and Litvinenko gave chase.
5. [Hartsfield’s] hands were in his pockets from the time he
turned to walk away, and remained in his pockets, as he sprinted
away.
6. Following a foot pursuit, the officers were able to take
[Hartsfield] into custody and recovered a firearm from his pocket
during a frisk.
7. Both Officers Walls and Litvinenko testified to their
experience with the location and identified it as a high crime area.
(See N.T. 01/05/2023 at 8-9, 25, 34, 36).
Findings of Fact and Conclusions of Law, 4/10/2023, ¶¶ 1-7.
The trial court did not analyze whether Hartsfield’s initial encounter with
police was a mere encounter or investigative detention. In Rice, this Court
considered such an issue in the Commonwealth’s appeal of an order granting
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9 We note that we are unable to find support in the suppression hearing record
that the incident occurred on this date and time. The notes of testimony from
the suppression hearing indicate that the incident occurred on April 15, 2022,
at approximately 9:30 p.m. See N.T., 1/5/2023, at 8-10, 16, 25, Ex. D1
(Incident Report, 4/15/2022). This error is non-substantive and our review
of the trial court’s decision reveals that it did not impact its determination. It
therefore does not alter our disposition.
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the defendant’s suppression motion. Rice, 304 A.3d at 1258. There, police
officers were on patrol, in uniform, and traveling in a marked car at around
7:25 p.m. in an area the officer testified had heightened gun violence,
homicides, and drug sales. Id. Police saw the defendant exit a corner store
and begin to walk toward the officers. Id. They observed an ”L” shaped bulge
in the defendant’s waistband. Id. As the officers drove toward him, the
defendant quickly turned around and began walking in the opposite direction.
Id. Police pulled up next to the defendant but did not activate the overhead
lights and siren. Id. An officer exited the car and began to approach the
defendant, the defendant continued to walk away from the officer while
looking back in the officer’s direction. Id. The officer said, “come here,” at
which the defendant fled. Id. One officer pursued him on foot while the other
followed in the car. Id. The defendant discarded a gun as he fled. Id. at
1259. Ultimately, the officers arrested the defendant, charging him with
firearms violations. Id. at 1258-59.
The court below granted the defendant’s motion to suppress; on appeal,
this Court reversed. Id. at 1258, 1263. Relying on Commonwealth v.
Newsome, 170 A.3d 1151 (Pa. Super. 2017), we held that under the
circumstances, the “officer’s mere statement to ‘come here,’ without more,
did not escalate the mere encounter to an investigative detention” and that
“the suppression court erred in concluding that the officers’ pre-flight
interaction with [the defendant] constituted an investigative detention.” Id.- 12 -
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at 1262. Specifically, this Court noted that the police “officers did not engage
their vehicle’s sirens or lights, brandish their weapons, position themselves in
a manner that hindered [the defendant’s] liberty to continue walking, tell
[him] that he was not free to leave, or threaten consequences for non-
compliance. Id. at 1262. Consequently, this Court determined that police
had reasonable suspicion to pursue the defendant following his unprovoked
flight in a high crime area and the recovery of the firearm abandoned by the
defendant during his flight was lawful. Id. at 1263.
In Newsome, this Court reversed a court’s grant of the defendant’s
motion to suppress, holding that a police lieutenant’s initial interaction with
the defendant was a mere encounter because his request for the defendant to
“come here” so he could talk to him was not a substantial impairment on the
defendant’s liberty of movement. Newsome, 170 A.3d at 1152, 1156. The
lieutenant had responded to an anonymous radio call that a group of people
was passing around a gun in an area known for shootings. Id. The lieutenant
arrived at the scene in full uniform and a marked police vehicle without the
lights or sirens engaged. Id. at 1152, 1156. He approached the defendant
to investigate the radio call and because he believed the defendant to be in
violation of the city’s curfew. Id. at 1155-56. The lieutenant asked the
defendant “to come here” so he could talk to him, but the defendant refused
and continued walking down the street. Id. at 1153, 1155. Once the
defendant was about eight to ten feet away, the lieutenant saw the defendant
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discard what looked like a gun in a nearby flowerpot. Id. at 1153. Another
police officer recovered a firearm from the flowerpot and the defendant was
subsequently arrested and charged with firearms violations. Id. The
lieutenant had not brandished his weapon, engaged in an overwhelming show
of force, or told the defendant he was not free to leave, nor had the lieutenant
positioned himself to obstruct the defendant’s ability to continue walking down
the street. Id. at 1156. The lieutenant asked the defendant “to stop” two or
three times, but there was no evidence that he threatened any consequences
for non-compliance or used an authoritative tone. Id. at 1156. This Court
thus concluded, based on the totality of the circumstances, that the defendant
was not seized during his initial encounter with the lieutenant. Id.Similarly, in Commonwealth v. Thomas, 273 A.3d 1190, 1200 (Pa.
Super. 2022), this Court affirmed the denial of the defendant’s motion to
suppress where the totality of the circumstances showed the initial interaction
between police officers and the defendant was a mere encounter. Police
observed the defendant riding his bicycle on a sidewalk in violation of a city
ordinance. Id. The officers pulled up next to him and asked, “Yo, can you
hold up a second?” Id. The defendant stopped and got off his bicycle as an
officer exited the vehicle. Id. Without provocation, the defendant
immediately fled on foot, discarding a firearm from his waistband during flight.
Id. at 1201. Because the officers did not demand compliance, threaten any
consequences for non-compliance, activate their lights and sirens, brandish a
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weapon, engage in an overwhelming show of force, use a commanding tone
of voice, inform the defendant he could not leave, or obstruct his ability to
leave, this Court agreed that the initial interaction did not escalate beyond a
mere encounter and therefore, the trial court’s denial of the suppression
motion was proper. Id. at 1202.
Returning our attention to the instant matter, the suppression record
demonstrates that the initial interaction involved multiple police officers in
marked vehicles pulling up along a sidewalk without lights or sirens activated.
See N.T., 1/5/2023, at 12, Exs. D-1 (Incident Report, 4/15/2022), D-2 (N.T.
(Preliminary Hearing), 7/11/2022, at 17). There is no indication in the
suppression record that Hartsfield’s initial encounter with the officers involved
weapons drawn, intimidating movement, a show of force, obstruction of his
path of travel, physical restraint, a statement that Hartsfield was not free to
leave, a mandate to comply, or threatened consequences for non-compliance.
Officer Walls was not even sure that he said anything to Hartsfield as he exited
the police vehicle, and the suppression court made no affirmative finding in
this regard. See id. at 14-15 (Officer Walls testifying that may have said
“hey” or “yelled stop” when he exited his vehicle). Accordingly, we conclude
that the totality of the circumstances reflected in the suppression hearing
record supports a finding that the initial interaction between the police officers
and Hartsfield was a mere encounter not requiring any level of suspicion. See
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Rice, 304 A.3d at 1258; Newsome, 170 A.3d at 1152, 1156; Thomas, 273
A.3d at 1202.
We next examine whether, and if so, when, the mere encounter between
police and Hartsfield developed into an investigatory detention supported by
reasonable suspicion. The trial court analyzed Hartsfield’s claim as follows:
Here, it is clear from the officers’ testimony and the
surveillance video ([N.T., 1/5/2023, Ex.] C-1) that Hartsfield fled
from police without being provoked. Hartsfield turned away at the
sight of Officer Walls exiting his vehicle and quickly began running
away. At the moment that Hartsfield begins to flee, there are no
police lights activated, merely an officer exiting his vehicle.
The controlling cases have repeatedly held that where, as
here, a person flees from the police in a high-crime area,
reasonable suspicion exists such that a stop of the person is
constitutionally justified. See Illinois v. Wardlow, 528 U.S. 119(2000) (police had reasonable suspicion to stop the respondent
for investigation where he fled from them in a high-drug area);
In re D. M., 781 A.2d 1161, 1164 (Pa. 2001) (“unprovoked flight
in a high crime area is sufficient to create a reasonable suspicion
to justify a Terry[10] stop”); Commonwealth v. Dunham, 203
A.3d 272, 278 (Pa. Super. 2019) (“unprovoked flight from police
in a high-crime area is sufficient to create reasonable suspicion for
police pursuit and will not warrant suppression”)[.]
Although [Hartsfield’s] flight from the police in a high-crime
area was itself sufficient to justify an investigatory stop, there
were additional factors that supported the stop. Hartsfield’s hands
were in his pockets from the time he turned to walk away, and
they remained in his pockets, even as he was sprinting away from
the officers. This action led the officers to believe he was carrying
a gun. As Officer Litv[i]nenko explained, “…numerous times that
people see police, when they observe us, and they touch the area
where they have things.” N.T.[,] 01/05/2023[, at] 36. Based
upon this experience, the officer’s conclusion that the defendant
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10 Terry v. Ohio, 392 U.S. 1 (1968).
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was carrying a gun was entirely reasonable. See
Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009)
(en banc) (the appellant’s grabbing at his waistband found to be
particularly relevant to the reasonable suspicion analysis because
“[t]he police officer was aware, based upon his experience with
armed suspects, that weapons are often concealed in a person’s
waistband”); see also Commonwealth v. Dix, 207 A.3d 383,
389 (Pa. Super. 2019) (police reasonably believed the large item
the appellant placed in his waistband was a firearm)[.]
Findings of Fact and Conclusions of Law, 4/10/2023, at 4-6 (some citations
omitted; ellipsis in original; footnotes added). The trial court also
distinguished the case relied upon by Hartsfield, Crews v. City of Chester,
35 A.3d 1267 (Pa. Cmwlth. 2012), because it was a civil case that found the
City of Chester’s loitering ordinance unconstitutionally vague but further
observed that the Crews decision acknowledged, in dicta, that unprovoked
flight in a high crime area gives rise to reasonable suspicion to conduct an
investigatory Terry stop. Id. at 6-7.
The suppression court correctly recognized that our Supreme Court has
held that “unprovoked flight in a high crime area is sufficient to create a
reasonable suspicion to justify a[n investigative] Terry stop under the Fourth
Amendment.” In re D.M., 781 at 1164. As this Court has explained,
[t]he United States Supreme Court held that although mere
presence in a high crime area is insufficient to support a Terry
stop, the additional factor of unprovoked flight was indeed
relevant. The [High] Court ultimately concluded that the two
factors in combination were sufficient to satisfy the Terry
standard of reasonable suspicion. [Wardlow, 528 U.S.] at 124.
Commonwealth v. Barnes, 296 A.3d 52, 58 (Pa. Super. 2023) (quoting
Commonwealth v. Jefferson, 853 A.2d 404, 406 (Pa. Super. 2004)). This
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holding has been extended to challenges made under the Pennsylvania
Constitution. Jefferson, 853 A.2d at 406-07.11
The trial court’s findings of fact, and in particular, its findings that
Hartsfield’s flight from the police officers was unprovoked and occurred in a
high crime area, are supported by the record. See Findings of Fact and
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11 As Hartsfield correctly observes in his brief, reliance on the “high crime
area” factor in our Commonwealth’s search and seizure jurisprudence has
been criticized by several Justices of our Supreme Court. See Hartsfield’s
Brief at 14-15 n.12. Several decisions of our High Court that did not garner
majority support have called for its elimination because it violates both the
federal and state constitutions in contravention of the requirement of
individualized reasonable suspicion or probable cause; have found it creates
inequity in the privacy protection afforded to individuals based on their
location; have criticized its use because there is no objective standard or
evidence required to be presented to support law enforcement’s determination
that an area is “high crime.” See, e.g., Commonwealth v. Dobson, 307
A.3d 612, 624-26 (Pa. 2024) (Wecht, J., Opinion in Support of Reversal);
Commonwealth v. Jackson, 302 A.3d 737, 756-62 (Pa. 2023) (Donohue,
J., Opinion in Support of Reversal); Commonwealth v. Galloway, 284 A.3d
870, 875 (Pa. 2022) (Wecht, J., dissenting); Commonwealth v. Thompson,
985 A.2d 928, 943-44 (Pa. 2009) (Baer, J., concurring).
In fact, our Supreme Court has granted allowance of appeal on this
issue: “Because flight alone by an individual at the sight of police does not
provide the necessary reasonable suspicion of criminal activity for a stop, does
it violate Article I, Section 8 to hold that there is reasonable suspicion based
solely on the location of the flight in a “high crime area,” a factor that involves
no additional conduct by the person police pursue and stop?”
Commonwealth v. Shivers, ___ A.3d ___, 2024 WL 3370506 (Pa. filed July
11, 2024) (per curiam). This matter remains pending before our Supreme
Court at the time of this writing and has not yet been decided; we are
therefore required to follow the decisional law established by this Court.
Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009)
(noting that this Court’s decisional law is viable precedent unless “overturned
by an en banc panel of this Court, or by a decision of the Pennsylvania
Supreme Court”).
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Conclusions of Law, 4/10/2023, ¶¶ 2, 5, 7; N.T., 1/5/2023, at 8-9, 12-15, 21,
25-26, 29-30, 33-34, 36, 46, Ex. D-1 (Incident Report, 4/15/2022). Thus,
based upon the current state of the law, we agree with the court’s legal
conclusion that the police officers had reasonable suspicion to pursue
Hartsfield following his unprovoked flight. See Barnes, 296 A.3d at 58
(holding the defendant’s presence in a high crime area coupled with
unprovoked flight from a police officer was sufficient to establish reasonable
suspicion to justify an investigative detention of the defendant).
Consequently, Officer Litvinenko’s recovery of the firearm during the
investigative detention was lawful and we affirm the trial court’s denial of
Hartsfield’s suppression motion.
In his second and third issues, Hartsfield challenges the sufficiency of
the evidence to sustain his convictions of resisting arrest and flight to avoid
apprehension. Our standard of review for a challenge to the sufficiency of the
evidence is well settled:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Juray, 275 A.3d 1037, 1042 (Pa. Super. 2022)
(quotation marks and citations omitted). The factfinder “is free to believe all,
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part, or none of the evidence presented.” Commonwealth v. Williams, 302
A.3d 117, 120 (Pa. Super. 2023) (quotation marks and citation omitted).
We begin by examining the sufficiency of the evidence to support
Hartsfield’s resisting arrest conviction. First, he argues that police did not
have probable cause to arrest him until after they recovered the firearm on
his person and determined that he did not have a license to carry a firearm
and was not permitted to possess a firearm. Hartsfield’s Brief at 19. He points
to Officer Litvinenko’s testimony that he recovered the gun after he
handcuffed Hartsfield, as well as the testimony of Officers Walls and Litvinenko
that they did not observe Hartsfield engage in any criminal activity and had
not received any information that Hartsfield may have been involved in a
crime. Id. He contends that, because flight from police alone does not give
rise to probable cause to arrest, the officers lacked probable cause to arrest
him at the time of the alleged resistance. Id. at 19-20.
Second, Hartsfield argues that the Commonwealth failed to present any
evidence that his actions created a substantial risk of bodily injury or required
substantial force to overcome. Id. at 20. He contends the Commonwealth
did not present evidence showing that Hartsfield’s actions were physically
forceful or that he injured or could have injured anyone. Id. Rather, he
argues, the evidence merely showed that Officer Litvinenko deployed his taser
to stop Hartsfield from running and that, once he was on the ground, the
police officers could not “get his hands” at first. Id.
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The Pennsylvania Crimes Code defines the offense of resisting arrest or
other law enforcement as follows:
A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force to
overcome the resistance.
18 Pa.C.S. § 5104. “This offense requires proof that a public servant was
effecting a lawful arrest or discharging a legal duty ‘other than arrest,’ which
the defendant intended to prevent, but “the phrase ‘discharging any other
duty’ does not include police investigation following an unlawful arrest.”
Commonwealth v. Cahill, __ A.3d __, 2024 WL 4128266 at *7 & n.8 (Pa.
Super. filed Sept. 10, 2024) (citation omitted). “The Commonwealth does not
need to establish actual injury. Instead, it may prove either that the
defendant’s actions created a substantial risk of serious bodily injury or that
the defendant employed means justifying or requiring substantial force to
overcome the resistance.” Id. (emphasis in original; citation omitted).12
“Merely exposing another to the risk of such injury is sufficient to sustain a
conviction under Section 5104.” Commonwealth v. Taylor-Dixon, __ A.3d
____________________________________________
12 We note that the Pennsylvania Supreme Court has granted allowance of
appeal on the issue of what constitutes “substantial force to overcome the
resistance” to establish resisting arrest. Commonwealth v. Crosby, 307
A.3d 1204 (Pa. 2023) (per curiam). As Crosby remains pending before our
Supreme Court at the time of this writing, we once again must follow the
decisional law established by this Court in deciding this case. See Santiago,
980 A.2d at 666 n.6.
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__, 2024 WL 3959222 at *3 (Pa. Super. filed Aug. 28, 2024) (citation and
quotation marks omitted). “[R]esisting arrest does not require the aggressive
use of force such as striking or kicking of the officer. We have found that even
passive resistance requiring substantial force to overcome provided sufficient
evidence for upholding the resisting arrest conviction.” Id. (citations and
internal quotation marks omitted).
In analyzing the sufficiency of Hartsfield’s resisting arrest conviction, the
trial court found:
Here, Hartsfield exhibited suspicious behavior in a high
crime area. As Officer Walls exited his vehicle, Hartsfield abruptly
turned and walked away from him. After taking four to five steps,
Hartsfield broke into a full sprint away from Officer Walls.
Hartsfield’s hands were in his pockets from the time he turned to
walk away from Officer Walls and remained in his pockets during
the chase. In this case, the Commonwealth presented ample
evidence to support [Hartsfield’s] conviction for resisting arrest.
Trial Court Opinion, 12/19/2023, at 6.
As stated above, police had reasonable suspicion to believe criminal
activity was afoot based upon his unprovoked flight in a high crime area.
Viewing the evidence presented in the light most favorable to the
Commonwealth, the record supports a finding that Hartsfield’s continued flight
intended to prevent the police officers from “discharging their duty” of
effecting a brief detention of Hartsfield for investigation. As the plain language
of the statute provides, a defendant’s actions in preventing an officer from
“discharging any other duty” would include conducting a Terry stop. See
Cahill, 2024 WL 4128266 at *7 & n.8; 18 Pa.C.S. § 5104; see also
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Commonwealth v. Smith, 172 A.3d 26, 32 (Pa. Super. 2017) (“The
handcuffing of a suspect, by itself, does not convert an investigative detention
into an arrest.”).
The record further supports a finding that Hartsfield employed means
which justified and required substantial force to overcome his resistance. See
Cahill, 2024 WL 4128266 at *7 & n.8; Taylor-Dixon, 2024 WL 3959222 at
*3. Officer Litvinenko testified that he “absolutely needed” to deploy his taser
to stop Hartsfield from continuing to flee. N.T. (Trial), 6/28/2023, Exs. C-1A
(Stipulation), C-1B (N.T., (Suppression), 1/5/2023, at 30, 38, 43-45, Exs. D-
1 (Incident Report, 4/15/2022), D-2 (N.T. (Preliminary Hearing), 7/11/2022,
at 8, 18-19)). Accordingly, the evidence admitted at the stipulated bench
trial, as well as all reasonable inferences drawn therefrom, when viewed in
the light most favorable to the Commonwealth, are sufficient to support
Hartsfield’s conviction of resisting arrest.
We next turn our attention to Hartsfield’s conviction of flight to avoid
apprehension. Hartsfield argues that the Commonwealth failed to introduce
any evidence to show that he had been charged with a crime at the time he
fled the police officers. Hartsfield’s Brief at 21. He further contends the trial
court erroneously relied on the fact that Hartsfield had a bench warrant for his
arrest for a violation of probation to find him guilty, as the record shows that
the parties never stipulated to this fact. Id.- 23 -
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The Pennsylvania Crimes Code defines the offense of flight to avoid
apprehension, trial, or punishment, in pertinent part, as follows:
A person who willfully conceals himself or moves or travels within
or outside this Commonwealth with the intent to avoid
apprehension, trial or punishment commits a felony of the third
degree when the crime which he has been charged with or has
been convicted of is a felony and commits a misdemeanor of the
second degree when the crime which he has been charged with or
has been convicted of is a misdemeanor.
18 Pa.C.S. § 5126(a).
The sole basis for the trial court’s finding that the evidence sufficiently
established the crime of flight to avoid apprehension was that “Hartsfield
stipulated that on the date of this offense, there was an open bench warrant
for his arrest for a violation of probation.” Trial Court Opinion, 12/19/2023,
at 7. Our review of the certified record, however, reveals that Hartsfield did
not stipulate to this fact. In fact, “the Commonwealth concedes that the
evidence presented was insufficient to sustain a conviction for flight to avoid
apprehension as the Commonwealth did not present evidence that, at the time
[Hartsfield] fled from police, he had been charged with a crime.”
Commonwealth’s Brief at 7; see id. at 16, 23-26.
At trial, the Commonwealth offered Exhibit C-5, a proposed stipulation
that on the date of the incident, there was an open bench warrant for
Hartsfield’s arrest for violation of probation. N.T., 1/28/2023, at 5-6.
Hartsfield’s counsel objected. Id. at 6. After an off-the-record discussion
between counsel, Hartsfield’s counsel specifically stated to the trial court that
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Hartsfield was not stipulating to that fact. Id. at 7 (Defense counsel stating,
“So there is no stipulation to the Defendant was a fugitive at or around the
time of the [inaudible] arrest in this case” and the trial court responding,
“Okay” and “All right.”) (brackets in original). The parties proceeded with the
admission of Exhibit C-6, a stipulation that Hartsfield did not have a permit to
possess a concealed firearm. Id. The trial court then had the following
exchange with the Commonwealth:
THE COURT: All right. Let me just to [sic] back to C-5 so I
understand this. Are you just letting that one go or are you going
to produce something that there was a bench warrant?
[THE COMMONWEALTH]: Your Honor, I’m not concerned with
that.
THE COURT: Okay.
[THE COMMONWEALTH]: We’re not concerned with the offense so
the stipulation is not essential – is not essential to the
Commonwealth’s case. So that’s fine.
Id. at 8; Commonwealth’s Brief at 5 n.1 (“After discussion, the stipulation was
not entered into evidence and the Commonwealth did not present any
evidence regarding the open bench warrant.”). It is thus clear from the record
that the parties did not stipulate to the fact that Hartsfield had a bench warrant
for his arrest on the date of the incident, nor is there any evidence of that fact
contained in the certified record.
We therefore agree with Hartsfield and the Commonwealth that the
record is devoid of any evidence showing that Hartsfield had an open bench
warrant on the date in question or that he fled police because he was avoiding
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apprehension for a crime. Consequently, the evidence admitted at the
stipulated bench trial, as well as all reasonable inferences drawn therefrom,
when viewed in the light most favorable to the Commonwealth, are insufficient
to support Hartsfield’s conviction of flight to avoid apprehension. We therefore
vacate the judgment of sentence as to this conviction.
Although we vacate the flight to avoid apprehension conviction, the
record reflects that the trial court sentenced Hartsfield to a probationary
sentence to run concurrently to his term of incarceration imposed on his other
convictions. See supra, note 7. Because our disposition does not disturb the
trial court’s overall sentencing scheme, we need not remand this matter for
resentencing. See Commonwealth v. James, 297 A.3d 755, 770 (Pa.
Super. 2023).
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
relinquished.
Date: 11/26/2024
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