Com. v. Toole, L.

J-S67026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS TOOLE, :
:
Appellant : No. 2763 EDA 2016
Appeal from the Judgment of Sentence August 17, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004407-2015
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017
Louis Toole (“Toole”) appeals from the judgment of sentence imposed
following his convictions of aggravated assault, possession of a firearm
prohibited, firearms not to be carried without a license, possession of an
instrument of crime, simple assault, recklessly endangering another person,
and resisting arrest. See 18 Pa.C.S.A. §§ 2702(a); 6105(a)(1); 6106(a)(1);
907(a); 2701(a); 2705; 5104. We affirm.
The trial court set forth the relevant underlying facts as follows:
On April 12, 2015, at about 5:45 p.m., Philadelphia Police Officer
Matthew Lally [(“Officer Lally”)] was on routine patrol in the
3500 block of North 21st Street when he observed a car turn
onto the 2000 block of Tioga Street, a one[-]way street with
parking on both sides of the street, where its operator partially
pulled into a parking spot that left the rear of the vehicle sticking
partly into the highway on 21st Street to a degree that required
cars traveling on Tioga Street to turn to go around it, in violation
of the law. Officer Lally observed [Toole] exit the vehicle and go
up onto the porch of a residence on Tioga Street. Officer Lally
circled the block[,] and when he returned to Tioga Street the car
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67026-17
[Toole] was driving was still parked in the same spot with its tail
still partially sticking into 21st Street.
Upon seeing the car in the same location, Officer Lally exited his
patrol car and began walking up to [Toole], who was sitting on
the porch of the residence the officer [had] earlier observed him
proceed onto. As Officer Lally climbed the stairs leading onto
the porch[, Toole] stood up and the officer asked him why he
had parked the car in the manner in which he did[,] and whose
car it was. [Toole], who appeared to be talking on his cell
phone[,] responded that it was not his house, that he was
waiting to pick up a friend, and that he had a “good” license[,] at
which time the officer asked him for identification. A female
then walked out of the residence and [Toole] asked her to tell
Officer Lally that she knew him so [that] Officer Lally would
leave him alone. The female, however, said in so many words
that she did not know him.
After the female indicated that she did not know [Toole], Officer
Lally asked [Toole] his name. When [Toole] went into his right
pants’ pocket[,] Officer Lally observed the handle of a handgun
sticking out of the waistband of [Toole’s] pants. He then asked
[Toole] if, in fact, it was a firearm[,] at which point [Toole]
pushed past Officer Lally to flee. Officer Lally grabbed [Toole] by
the collar and as the officer attempted to handcuff [Toole],
[Toole] threw a punch at the officer that missed …. The two
men began to wrestle and they tumbled down some steps onto
the pavement into a parked car[,] where [Toole] attempted to
retrieve the gun in his waistband as the two men continued to
wrestle. When [Toole] pulled the gun from his waistband,
Officer Lally got off of [Toole’s] back, drew his weapon, and
ordered [Toole] to drop the handgun. [Toole] immediately threw
his gun under a car and stood up when Officer Lally again
attempted to handcuff [Toole], who continued to struggle[,] and
prevented the officer from doing so.
During the affray with [Toole], Officer Lally called for back-up
officers[,] who arrived approximately five to seven minutes after
Officer Lally called for them. [Toole] was then placed in custody.
Police recovered the firearm [Toole] discarded, which testing
showed was operable[,] and two containers from [Toole] that
contained alleged PCP.
-2-
J-S67026-17
In addition thereto, evidence was presented indicating that
[Toole] did not have a license to possess a firearm and had a
prior conviction that made him ineligible to possess a firearm.
Trial Court Opinion, 2/14/17, at 2-4 (citations and footnote omitted).
Toole was charged with numerous crimes. Toole filed a Motion to
Suppress the evidence. Following a hearing, the trial court denied the
Motion to Suppress. Toole waived his right to a jury trial, and the case
proceeded to a bench trial before the Honorable Jeffrey P. Minehart. Judge
Minehart found Toole guilty of the above-mentioned crimes. On August 17,
2016, Judge Minehart sentenced Toole to an aggregate sentence of four to
eight years in prison, to be followed by ten years’ probation.
Toole filed a timely Notice of Appeal, and a court-ordered Pennsylvania
Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Toole raises the following question for our review: “Did the
[trial] court commit error by denying [Toole’s] Motion to Suppress evidence
obtained by a seizure performed without reasonable suspicion?” Brief for
Appellant at 2 (some capitalization omitted).
In reviewing the denial of a motion to suppress, our
responsibility is to determine whether the record supports the
suppression court’s factual findings and legitimacy of the
inferences and legal conclusions drawn from those findings. If
the suppression court held for the prosecution, we consider only
the evidence of the prosecution’s witnesses and so much of the
evidence for the defense as, fairly read in the context of the
record as a whole, remains uncontradicted. When the factual
findings of the suppression court are supported by the evidence,
the appellate court may reverse if there is an error in the legal
conclusions drawn from those factual findings.
-3-
J-S67026-17
Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation
omitted).
Toole contends that the trial court erred in denying his Motion to
Suppress because the evidence was obtained as the result of an unlawful
investigative detention. Brief for Appellant at 6. Toole argues that Officer
Lally’s actions of approaching Toole in front of a residence, asking another
individual whether she knew Toole, and asking for Toole’s identification
demonstrate that Toole was subject to an investigative detention. Id. at 9.
Toole asserts that Officer Lally lacked reasonable suspicion that Toole was
engaging in criminal activity prior to approaching Toole. Id. at 9-10; see
also id. at 9 (claiming that Officer Lally was merely searching for evidence
of criminal activity when he approached Toole). Toole further asserts that
his mere presence in front of a residence did not evince a criminal motive.
Id. at 10. Toole claims that because the detention was not supported by
reasonable suspicion, all of the evidence collected following the interaction,
including the firearm, should be suppressed. Id.
“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 police and a citizen:
-4-
J-S67026-17
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 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.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation
omitted).
In determining whether an interaction should be
considered a mere encounter or an investigative detention, the
focus of our inquiry is on whether a seizure of the person has
occurred. Within this context, our courts employ the following
objective standard to discern whether a person has been seized:
[w]hether, under all the circumstances surrounding the incident
at issue, a reasonable person would believe he was free to leave.
Thus, a seizure does not occur simply because a police officer
approaches an individual and asks a few questions.
Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010)
(citations, brackets, quotation marks, and ellipses omitted).1
On April 12, 2015, Officer Lally, in full uniform and while on routine
patrol in the 3500 block of 21st Street in Philadelphia, observed a vehicle,
driven by Toole, make a quick left turn onto West Tioga Street and park his
____________________________________________
1 This Court has set forth a non-exclusive list of factors to determine
whether a seizure has occurred, including “the number of officers present
during the interaction; whether the officer informs the citizen they are
suspected of criminal activity; the officer’s demeanor and tone of voice; the
location and timing of the interaction; the visible presence of weapons on
the officer; and the questions asked.” Commonwealth v. Collins, 950
A.2d 1041, 1047 n.6 (Pa. Super. 2008) (en banc).
-5-
J-S67026-17
vehicle. N.T., 4/19/16, at 5-6. The front of the vehicle was blocking the
sidewalk entrance, and the back of the vehicle was sticking out onto 21st
Street. Id. at 6, 18; see also id. at 7-8 (wherein Officer Lally noted that
cars travelling on 21st Street had to go around the parked vehicle). Officer
Lally observed Toole exit the vehicle, walk up to a house and sit on a porch.
Id. at 6, 8, 17, 19, 21. After going around the block, Officer Lally parked his
vehicle and approached Toole, who was talking on his phone. Id. at 6, 8-9;
see also id. at 8, 10 (wherein Officer Lally indicated that did not turn on his
lights or siren at any point). Officer Lally asked Toole why he parked his
vehicle in that manner. Id. at 9, 25. Toole replied that he was waiting for a
friend. Id. at 9, 25, 27, 28. During the interaction, a female exited the
residence, and Toole asked her to tell Officer Lally that she knew Toole. Id.
at 9, 29. The female stated that she did not know Toole. Id. At that point,
Officer Lally asked Toole for identification. Id. at 9, 11-13, 30; see also id.
at 10 (stating that Officer Lally did not draw his firearm during this
encounter). As Toole reached into his right pocket to retrieve his wallet,
Officer Lally observed a firearm sticking out of the front of his waistband.
See id. Officer Lally then asked Toole if he had a firearm in his waist, after
which Toole pushed past Officer Lally. Id. at 13, 36-37. As Officer Lally
grabbed Toole and attempted to handcuff him, both fell down the stairs. Id.
at 13, 37, 38. After wrestling with Toole, Officer Lally drew his firearm and
-6-
J-S67026-17
ordered Toole to drop his firearm. Id. at 14, 16, 38-41. Toole threw his
firearm under a parked vehicle. Id. at 14, 42.
Upon our review of the record, we conclude that Officer Lally’s initial
encounter with Toole was a “mere encounter.” Here, after observing Toole
park his vehicle such that the rear of the vehicle was sticking out into the
intersection,2 and get out of the vehicle, Officer Lally parked his vehicle and
approached Toole. Officer Lally merely asked Toole why he had parked his
vehicle in such a manner. See Commonwealth v. Downey, 39 A.3d 401,
405 (Pa. Super. 2012) (noting that initial encounter where officer asked to
talk to the appellant was a mere encounter); see also Commonwealth v.
Blair, 860 A.2d 567, 573 (Pa. Super. 2004) (stating that initial encounter
was a “mere encounter” when the officer, responding to a report of a
domestic dispute and aware that domestic disputes are volatile, approached
a vehicle parked directly in front of the address in question and spoke to the
occupants). There is no evidence that Officer Lally blocked or restricted
Toole’s movement. See Downey, 39 A.3d at 405. Indeed, Toole continued
to talk on the phone while Officer Lally asked him questions. See
____________________________________________
2 The trial court notes that Toole violated Motor Vehicle Code sections 3351,
Stopping Standing and parking outside business and residence districts, and
3354(b), Additional parking regulations – one-way highways, by illegally
parking his vehicle. See Trial Court Opinion, 2/14/17, at 5-6. The evidence
of record however does not demonstrate that Toole violated either of these
specific statutes. Based upon the evidence, Toole violated section
3353(a)(1)(iii), which prohibits the parking of a vehicle within an
intersection.
-7-
J-S67026-17
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (stating
that “[a] mere encounter can be any formal or informal interaction between
an officer and a citizen, but will normally be an inquiry by the officer of a
citizen. The hallmark of this interaction is that it carries no official
compulsion to stop or respond.”). Officer Lally’s subsequent request for
identification from Toole, without any other action, does not demonstrate
that the encounter escalated into an investigative detention. See
Commonwealth v. Au, 42 A.3d 1002, 1008-09 (Pa. 2012) (holding that the
officer’s request for identification after approaching a parked vehicle did not,
by itself, transform the encounter into an investigatory detention where
officer did not “activate the emergency lights on his vehicle; position his
vehicle so as to block the car that [a]ppellee was seated in from exiting the
parking lot; brandish his weapon; make an intimidating movement or
overwhelming show of force; make a threat or a command; or speak in an
authoritative tone.”) (internal citations omitted); see also Commonwealth
v. Lyles, 97 A.3d 298, 303 (Pa. 2014) (noting that “a seizure does not occur
where officers merely approach a person in public and question the
individual or request to see identification.”).
Moreover, the fact that Officer Lally, upon seeing the handle of a
firearm, asked Toole whether he possessed a firearm did not constitute a
seizure. See Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa.
Super. 2011) (noting that an officer’s interaction with the defendant where
-8-
J-S67026-17
officer asked defendant whether he had a gun was a mere encounter);
accord Commonwealth v. Young, 162 A.3d 524, 529 (Pa. Super. 2017).
Based upon Toole’s ongoing violation of the Motor Vehicle Code,3 and Officer
Lally’s actions, we conclude that the initial interaction was a mere encounter
that did not require any level of suspicion. See Commonwealth v. Moore,
11 A.3d 538, 540-41 (Pa. Super. 2010) (holding that a police officer’s
request to move out of a doorway constituted a mere encounter, as the
officer did not act in a threatening or coercive manner); see also
Commonwealth v. Newsome, 170 A.3d 1151, 1155-56 (Pa. Super. 2017)
(concluding that an officer’s initial interaction with defendant was a mere
encounter where the officer was responding to an anonymous call that
individuals were passing around a firearm, arrived at the scene in full
uniform and a marked police vehicle, did not brandish a weapon, asked to
speak to the defendant, who initially refused, and asked defendant to stop
two or three times).
Moreover, when Officer Lally grabbed and attempted to handcuff
Toole, as Toole tried to leave the scene, the interaction escalated to a
custodial detention. Nevertheless, Officer Lally had probable cause to arrest
Toole based upon his observation of a firearm in Philadelphia. See
____________________________________________
3We further acknowledge that because there was an ongoing violation of the
Motor Vehicle Code based upon Toole’s parking of his vehicle, Officer Lally
had the right to conduct an investigative detention of Toole. See, e.g.,
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015)
-9-
J-S67026-17
Commonwealth v. Taggart, 997 A.2d 1189, 1196 (Pa. Super. 2010)
(noting that “an officer’s observation of an individual carrying a handgun on
public streets in the city of Philadelphia gives rise to probable cause for an
arrest under [section] 6108.”); see also Commonwealth v. Canning, 587
A.2d 330, 332 (Pa. Super. 1991) (noting that “[o]nce probable cause is
established, it does not dissipate simply because the suspect is not charged
with the particular crime which led to the finding of probable cause.”).4
Thus, based upon the foregoing, the trial court properly denied Toole’s
Motion to Suppress. See Newsome, 170 A.3d at 1156 (concluding that
defendant’s motion to suppress should have been denied where initial
encounter was a mere encounter and the officer properly arrested defendant
after observing defendant reach into his waistband, remove a firearm, and
discard it).
Judgment of sentence affirmed.
____________________________________________
4 While Toole does not raise an argument regarding the forced abandonment
of the firearm on appeal, the trial court noted in its Opinion that such a claim
would be without merit. See Trial Court Opinion, 2/14/17, at 10-11.
Specifically, the trial court pointed out that Officer Lally’s actions were legal
and Toole voluntarily discarded the firearm. See id. (citing
Commonwealth v. Byrd, 987 A.2d 786, 791 (Pa. Super. 2009)).
- 10 -
J-S67026-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
- 11 -