Com. v. Rivera, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH RIVERA, :
:
Appellant. : No. 2245 EDA 2017
Appeal from the Judgment of Sentence, July 6, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0008450-2016.
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 02, 2018
Joseph Rivera appeals from the judgment of sentence imposed after a
bench trial where he was convicted of various firearm charges.1 In his sole
issue raised on appeal, Rivera challenges the trial court’s denial of his
suppression motion. After careful review, we affirm.
The trial court summarized the relevant facts as follows:
On August 5, 2016, at about 9:00 p.m., Philadelphia
Police Officer John Seigafuse received a telephone call from
a person he knew by name[,] who told him that there were
three males standing on the corner of Glenwood Avenue and
6th Street armed with handguns. Included in that
information was the following description of the males:
The first one was a Hispanic male wearing a white polo
shirt and jeans. The second was a Hispanic male with a
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1 18 Pa.C.S.A. §§ 6105, 6106, and 6108.
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beard wearing a black t-shirt and jeans. The third was a
Hispanic male with a gray t-shirt and blue jeans.
Officer Seigafuse and other officers, including Officer
Jonathan Czapor, went to that location in two police cars,
arriving at about 9:15 p.m. Upon arrival, they immediately
saw three males that fit the above description given to
Officer Seigafuse. The officers were in plain clothes and did
not activate the lights and sirens on their vehicles upon
arrival.
Upon arrival, one of the police cars stopped ahead of
where the males were standing and the other pulled behind
the males’ location approximately twenty feet away.
Officers Czapor and Seigafuse exited their vehicle
simultaneously with the other officers and they all
approached the three males. Upon approach, “two of the
males, the one with the big, black beard and black t-shirt
and the other male with the white polo shirt, … immediately
looked in [Officer Czapor’s] direction and both of them put
their hands up above their heads.”
According to Officer Czapor, the third male, ([Rivera]
herein) who was wearing a grey t-shirt and blue jeans, did
a 180. There was a fence behind him and as soon as he
turned around, he went down, put his head down and
immediately put his hands towards the front right side of
[his] waistband. It appeared he was so focused on his
waistband that he actually walked into the chain-link fence
that was behind him at that time.
After [Rivera] walked into the fence, Officer Czapor was
forced to physically restrain him because he made a move
toward his waistband and the officer could not see [Rivera’s]
hands. The officer conducted a pat-down of [Rivera’s]
waistband and immediately felt a handgun. As the other
officers restrained [Rivera], Officer Czapor recovered the
handgun, which later examination revealed was both loaded
and operable.
Officer Czapor, a police officer for sixteen years, had
recovered guns and narcotics on multiple occasions in the
area where [Rivera] was apprehended. He further testified
that is was a high traffic drug area. Finally, [Rivera] did not
have a license to carry a firearm and had prior convictions
rendering him ineligible to possess a firearm.
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Trial Court Opinion, 11/16/17, at 2-3 (citations and footnotes omitted).
On March 13, 2017, Rivera filed a motion to suppress physical evidence,
including his statements to the police, and the gun found on his person. Within
his motion, Rivera averred that he was arrested without probable cause, he
was subjected to a stop and frisk on less than reasonable suspicion, and he
was arrested without a lawfully issued warrant or other legal justification.
Rivera further averred the police conducted the search without probable
cause. Omnibus Motion, 3/13/17 at 2.
The trial court held an evidentiary hearing on April 6, 2017. Both Officer
Czapor and Officer Seigafuse testified. The trial court ultimately denied
Rivera’s motion. On May 1, 2017, following a stipulated waiver trial, the court
found Rivera guilty of all charges. The trial court imposed an aggregate
sentence of 5 to 10 years’ incarceration. This appeal follows. Both the trial
court and Rivera have complied with Pa.R.A.P. 1925.
Rivera presents the following issue for our review:
1. Did not the [trial] court err by denying [Rivera’s] motion
to suppress the physical evidence and by characterizing
[Rivera’s] first contact with police as a “mere encounter,”
where two cars carrying five or six police officers pulled
up behind and in front of [Rivera], who was standing on
a street corner with two other Hispanic men; where
officers got out of the cars and approached from either
side, causing the other men to put their hands up in the
air; where officers characterized the interaction as a
“stop”; and where officers prevented [Rivera] from
walking away?”
Rivera’s Brief at 3.
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Our scope of review is limited to the testimony and other evidence
presented at the suppression hearing. See generally, In re L.J., 79 A.3d
1073 (Pa. 2013). Because the Commonwealth prevailed on this issue in the
suppression court, we consider “only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted when read in
the context of the record as a whole. When the record supports the findings
of the suppression court, we are bound by those facts and may reverse only
if the legal conclusions drawn therefrom are in error.” Commonwealth v.
Johnson, 33 A.3d 122, 124 (Pa. Super. 2011). Our review of the
suppression-hearing transcript supports the trial court’s factual findings.
Next, we must determine whether the trial court’s legal conclusions are
correct. The trial court reasoned:
Here, there was no evidence presented during the
suppression hearing indicating that when the officers
approached [Rivera] and the other two males, they made
any showing of physical force or display of authority. The
officers did not have weapons drawn and there is no
evidence that they blocked [Rivera’s] path or restricted his
freedom of movement in any significant way. Importantly,
they did not tell [Rivera] that he was not free to leave.
Thus, this Court’s ruling that this was a mere encounter is
consistent with the applicable law and should not be
disturbed. See, e.g., In Interest of Jermaine, 582 A.2d
1058, 1061 (Pa. Super. 1990) (“Examples of circumstances
that might indicate a seizure, even where the person did not
attempt to leave, would be the threatening presence of
several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with
the officer’s request might be compelled.”) (citations
omitted). Accord Florida v. Royer, 460 U.S. 491, 496
(1983) (“law enforcement officers do not violate the Fourth
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Amendment by merely approaching an individual on the
street or in another public place, by asking him if he is
willing to answer some questions, by putting questions to
him if the person is willing to listen”).
Even if [Rivera] was subjected to an investigative
detention when the police exited their vehicles, suppression
still was not warranted. [Rivera] and the other two males
were in the precise location stated by the person who
supplied the information to police and the males were
garbed exactly as described by the caller. The fact that
[Rivera] and the others fit the description of the males
described in the telephone call permitted the experienced
officers, in a high crime area, to investigate and to briefly
detain them for questioning. The law is well settled that a
tip may give rise to reasonable suspicion if it has the
requisite indicia of reliability, which may include
corroboration by police observation. Navarette v.
California, 134 S. Ct. 1683, 1688-1692 (2014); Alabama
v. White, 496 U.S. 325, 329 (1990); Adams v. Williams,
407 U.S. 143, 146-47 (1972). Accord Commonwealth v.
Zhahir, 751 A.2d 1153, 1157 (Pa. 2000); In Re D.M., 781
A.2d 1161, 1165 (Pa. 2001), Commonwealth v.
Korenkiewicz, 743 A.2d 958, 964 (Pa. Super. 1999) (en
banc). Such corroboration occurred here when the police
arrived and observed [Rivera] and the other two males,
matched the description, in the precise location described in
the telephone call received mere minutes earlier. Moreover,
no one else present in the area matched the description of
the three males. Thus, the fully corroborated report
provided reasonable suspicion to investigate the males
further.
Finally, [Rivera’s] acts upon seeing the police officers
who, as noted above, did nothing to convey they were not
free to leave, gave the officers grounds to detain and frisk
[Rivera]. Officer Czapor stated that [Rivera] suddenly
turned to a fence, secreting his hands from the officers’
view, while immediately reaching for his waistband. These
actions immediately caused the officer to fear that [Rivera]
was armed and potentially dangerous.
Trial Court Opinion, 11/16/17, at 6-7.
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As we will discuss in detail below, we disagree with the trial court’s
conclusion that law enforcement’s initial interaction with Rivera was a mere
encounter. However, we agree that the totality of the circumstances justified
a valid investigative detention. As such, we conclude that the policemen’s
search of Rivera was constitutional and the trial court properly denied Rivera’s
motion to suppress.
In his first argument, Rivera contends that “the trial court erred by
characterizing the policemen’s initial approach as a ‘mere encounter’.”
Rivera’s Brief at 9. Rivera points to multiple facts to support this contention.
First, he avers that “[f]ive or six officers in two police cars all descended
together” upon him and the two other men. Id. Rivera points out that the
police approached him and the other males from both sides, and that “they
took out their badges from around their necks as they approached.” Id.
Finally, Rivera argues that the other two men raised their hands above their
heads as the officers approached, objectively demonstrates a seizure
occurred. According to Rivera, “[u]nder all the circumstances surrounding this
initial police approach, a reasonable person would not believe he was free to
leave.” Id. at 10. We agree with this part of Rivera’s argument.
“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). Once a criminal defendant files a motion to
suppress evidence, it is the Commonwealth’s burden to prove, by a
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preponderance of the evidence, that the challenged evidence was not obtained
in violation of the defendant’s rights. Commonwealth v. Simonson, 148
A.3d 792, 796 (Pa. Super. 2016).
Appellate courts in Pennsylvania “have long recognized that there are
three levels of intrusion involved in interaction between members of the public
and police.” Walls, 53 A.3d at 892. This Court has compared and contrasted
these levels of interaction as follows:
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 the citizen. The hallmark of this
interaction is that it carries no official compulsion to stop or
respond.
In contrast, an investigative detention, by implication,
carries an official compulsion to stop and respond, but the
detention is temporary, unless it results in the formation of
probable cause for arrest, and does not possess the coercive
conditions consistent with a formal arrest. Since this
interaction has elements of compulsion it requires
reasonable suspicion of unlawful activity. In further
contrast, a custodial detention occurs when the nature,
duration and conditions of an investigative detention
become so coercive as to be, practically speaking, the
functional equivalent of an arrest.
Commonwealth v. Coleman, 19 A.3d 1111, 1115-16 (Pa. Super. 2011)
(citations omitted).
We begin our review with the first inquiry focusing on whether Rivera
was “seized” during the initial interaction with Officer Czapor, Officer
Seigafuse, and the three to four additional responding officers. In determining
whether a valid seizure has occurred, we evaluate all of the surrounding
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circumstances through an objective lens to ascertain whether a reasonable
person would feel that he was free to leave. Commonwealth v. Strickler,
757 A.2d 884, 889 (Pa. 2000).
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. In making this determination, courts must
apply the totality-of-the-circumstances approach, with no
single factor dictating the ultimate conclusion as to whether
a seizure has occurred.
Id. at 890 (citation and footnote omitted).
Rivera contends that the initial approach and interaction by the police
exceeded the scope of a mere encounter. The Commonwealth argues that
the “police approached [Rivera] without activating lights or sirens, touching
defendant or restraining his movements in any way, displaying weapons, or
saying anything.” Commonwealth’s Brief at 8. The Commonwealth relies on
this Court’s decision in Commonwealth v. Byrd, 987 A.2d 786 (Pa. Super.
2009) in support of its argument.
In Byrd, the trial court granted the appellant’s motion to suppress,
finding that the appellant abandoned contraband due to an “unlawful show of
force” when the appellant discarded a gun after spotting three to five police
cars travelling the wrong way down a one way street. Id. at 792. This Court
reversed, concluding that “appellee was not deprived of his freedom in any
significant way nor could he reasonably believe that his freedom of action was
being restricted by police conduct prior to abandoning the handgun.” Id. at
793. This Court noted that the neither the cruisers’ sirens nor lights were on,
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but perhaps, more importantly, there was “no evidence that the police showed
any interest in appellee…” Id. Additionally, the police vehicles were 50 to 60
feet away when the appellee abandoned his gun. Id.
Here, the police were specifically interested in Rivera and the two other
men with him. The police drove to that particular location with particularized
intent to find them. Although, the lights and sirens were not activated in the
police cars, Officer Seigafuse testified that the two police vehicles were parked
in a manner that “boxed [Rivera and the other two men] in,” and that he and
the other four to five police officers approached Rivera from the front and the
back. N.T., 4/6/2017, at 20. Given the orientation of the police vehicles and
the formation in which the officers approached Rivera, it is clear that a
reasonable person would feel that their movement had been restricted and
that they were not free to leave. Additionally, during his testimony, Officer
Seigafuse referred to the initial encounter with Rivera and the other two
suspects as a “stop.” Id. at 20.
Citing Commonwealth v. Baldwin, 147 A.3d 1200, 1203 (Pa. Super.
2016), the Commonwealth emphasizes that “the focal point of the inquiry is
whether a reasonable innocent person would have felt restrained under the
circumstances.” Commonwealth’s Brief at 10. In Baldwin, as in Rivera’s
case, the police did not activate sirens or lights. However, this Court pointed
to another circumstance present in Baldwin that is absent here; “the officers
did not block [Baldwin’s] path…” Id. at 1204. By parking two vehicles from
the front and from behind the men, and in addition to the five to six officers
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approaching from either side, Rivera’s path was effectively blocked. As such,
under a totality of the circumstances analysis, the facts in Baldwin are readily
distinguishable from the facts in Rivera’s case.
The Commonwealth also discounts the fact that the other two men with
Rivera raised their hands above their heads, and denies this was evidence a
seizure occurred. The Commonwealth argues that police officers may
approach citizens on the street, Commonwealth v. Lyles, 97 A.3d 298, 303
(Pa. 2014), and the men’s reaction was a product “of their own fear of
detection and not because of any coercion or restriction by police.”
Commonwealth’s Brief at 10. We disagree. As noted above, the manner in
which the police surrounded and approached the men, indicates Rivera was
not free to leave. The fact that the other two men reflexively raised up their
hands adds weight to the conclusion a seizure occurred.
Viewing the totality of the circumstance, we determine that the officers
exercised a sufficient show of authority to warrant a reasonable man to
conclude they were attempting a forcible stop. Thus, our review of the record
indicates this was more than a mere encounter.
We now turn our analysis to whether reasonable suspicion existed to
subject Rivera to a valid Terry stop. Rivera contends that the information
Officer Seigafuse received from a known informant fell short of establishing
sufficient reasonable suspicion to initiate a stop. Rivera asserts that:
While the source had supplied information to Officer Seigafuse in
the past, the extent and basis of this information was never
divulged. Officer Seigafuse did not have the current address of
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the tipster. Nor was there any way for defense counsel to test the
basis or reliability of the past information the tipster had provided
Officer Seigafuse.
Rivera’s Brief at 14-15 (citations omitted).
Rivera suggests that these aforementioned facts (or lack thereof) render
the tip from Officer Seigafuse’s known source unreliable. We disagree. In
Commonwealth v. Brown, 996 A.2d 473 (Pa. 2010), our Supreme Court
rejected a similar argument which would require the Commonwealth to
provide a detailed history of a known informant’s tips to establish the tipster’s
reliability. The Court held that listing an informant’s history such as, the
number of times the informant was used, the number of times arrests were
made based on that information, and the number of convictions as a result, is
one way to prove reliability, but not the sole way. Id. at 478. The Court
stated that “[t]he constitutional test requires sufficient suspicion but . . . does
not delineate specific details that must be listed like a recipe in order to give
rise to that suspicion.” Id. Therefore, Rivera’s assertion that the
Commonwealth was obliged to divulge the “extent and basis” of the
informant’s past tips is without merit. Additionally, Rivera cited no authority
that requires an officer to know an informant’s current address to qualify the
informant as a reliable source. Similarly, Rivera has cited no authority to
support his argument that defense counsel must have an opportunity to cross
check the informant’s reliability. Likewise, we are unaware of any such
precedent.
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"To have reasonable suspicion, police officers need not personally
observe the illegal or suspicious conduct, but may rely upon the information
of third parties, including 'tips' from citizens." Commonwealth v. Lohr, 715
A.2d 459, 461 (Pa. Super. 1998). With respect to these third-party "tips," we
have held:
Reasonable suspicion, like probable cause, is dependent
upon both the content of information possessed by police
and its degree of reliability. Both factors — quantity and
quality — are considered in the "totality of the
circumstances — the whole picture," that must be taken into
account when evaluating whether there is reasonable
suspicion. Thus, if a tip has a relatively low degree of
reliability, more information will be required to establish the
requisite quantum of suspicion than would be required if the
tip were reliable.
When the underlying source of the officer's information is an
anonymous call, the tip should be treated with particular
suspicion. However, a tip from an informer known to the
police may carry enough indicia or reliability for the police
to conduct an investigatory stop, even though the same tip
from an anonymous informant would likely not have done
so.
Indeed, identified citizens who report their observations of
criminal activity to police are assumed to be trustworthy, in
the absence of special circumstances, since a known
informant places himself at risk of prosecution for filing a
false claim if the tip is untrue, whereas an unknown
informant faces no such risk. When an identified third party
provides information to the police, we must examine the
specificity and reliability of the information provided. The
information supplied by the informant must be specific
enough to support reasonable suspicion that criminal
activity is occurring. To determine whether the information
provided is sufficient, we assess the information under the
totality of the circumstances. The informer's reliability,
veracity, and basis of knowledge are all relevant factors in
this analysis.
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Commonwealth v. Barber, 889 A.2d 587, 593-594 (Pa. Super. 2005)
(internal quotations and citations omitted).
Rivera relies on this Court’s decision in Commonwealth v. Jones, 845
A.2d 821 (Pa. Super. 2008), where we held that no reasonable suspicion
existed when a police officer stopped the defendant’s vehicle based on a
named individual’s complaint. In Jones, the officer was notified that a vehicle
matching the description and license plate number of the defendant’s was
involved in drug activity. In that case, the officer only knew the name of the
informant through the dispatcher. The officer did not know where the tip had
come from or of the reliability of the source, because he had no prior history
with the tipster. Additionally, no description was given regarding the people
in the car or any specificity as to the type of “drug activity” occurring. As
such, the tip “did not contain sufficient specificity to justify the detention…”
Id. at 826.
Rivera’s case is easily distinguishable from Jones. Here, the informant
had provided Officer Seigafuse with reliable information on numerous
occasions over the course of a year resulting in multiple arrests. The tip also
provided specific information, including the number of men, their race, facial
descriptions, the clothing they were wearing, and the precise location where
then men were standing.
Rivera’s reliance on Commonwealth v. Allen, 725 A.2d 737 (Pa. 1999)
is also misplaced. In that case, a police officer received a tip from a retired
police lieutenant. The vague tip generally described a man who was selling
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drugs at a certain residence. Id. at 740. Our Supreme Court held that the
officer “did not possess sufficient information to raise a reasonable suspicion
that appellant was currently engaged in criminal activity.” Id. (emphasis
added). In contrast, here, the tipster provided a detailed description of the
men, and reported that they were, at that instant, standing at a given location
with guns.
Finally, Rivera argues that the police failed to corroborate the
informant’s tip because they did not set up surveillance in order to observe
Rivera engage in suspicious conduct. Rivera’s Brief at 15. We reject this
argument. First, the police corroborated nearly every detail of the informant’s
tip when they drove to the specified location and observed three men
matching the exact description the tipster provided.2 Second, this argument
that the police failed to survey Rivera is a red herring. In Brown, our
Supreme Court aptly summarized a similar factual situation:
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2 In Draper v. United States, 358 U.S. 307 (1959), a paid informant who
had a history of accuracy and reliability, told the agent that the defendant
would be arriving in Denver on a train from Chicago, and would be in
possession of heroin. The informant described the defendant’s physical
attributes and mannerisms. The officer observed a man matching the
informant’s description exiting from the train reported. The Supreme Court
of the United States held that the agent independently corroborated every
facet of the tip which established “reasonable grounds” for the officer to
believe that the unproved information regarding the heroin was also true. As
such, the agent had probable cause to believe the defendant was engaged in
illegal activity. As in Draper, Officer Seigafuse’s informant told him of
specified individuals, engaged in specific crimes at a specific time and location,
and the officers corroborated the personal information to approximately the
same extent as in Draper.
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The question involves credibility of the one person who
called police. The informant in this case was not anonymous,
and the tip consisted of more than mere description. The
informant provided police with information regarding
imminent criminal activity committed by a specific person at
a particular time and place. These facts, provided by a
source known to police and corroborated through police
investigation certainly gave rise to reasonable suspicion
sufficient to warrant an investigative detention.
Brown, 996 A.2d 473, 479 (Pa. 2010) (emphasis added).
In sum, we conclude that the initial interaction between Rivera and the
police constituted more than a mere encounter. However, because the known
informant had a track record of reliability, and the officers corroborated the
information that the tipster provided, the totality of the circumstances
established sufficient reasonable suspicion to conduct a lawful investigative
detention.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/18
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3 Rivera does not dispute that once he turned to flee and reached for his
waistband, police had reasonable suspicion to justify a frisk of weapons. See
Rivera’s Brief at 11. An officer may conduct a pat-down “if the officer
possesses reasonable suspicion that the person may be armed and
dangerous.” Commonwealth v. Thomas, 179 A.3d 77, 83 (Pa. Super. 2018)
(citation omitted).
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