Com. v. Holloway, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
TYRONE HOLLOWAY
No. 1530 EDA 2016
Appeal from the Order April 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006776-2015
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED MAY 03, 2018
Appellant, the Commonwealth of Pennsylvania, appeals the order
entered April 15, 2016, granting the motion to suppress filed by Appellee,
Tyrone Holloway. We affirm.
The suppression court discussed the facts of this case as follows:
On April 1, 2015, at approximately 10:27 p.m., uniformed police
officers Kamedula and Barrie arrived in a marked police vehicle at
the Blumberg Housing Projects on the 2300 block of Bolton Street
in Philadelphia. The officers then received a radio call that men
and women were in front of 2300 Bolton Street fighting and a
firearm was present. A 9-1-1 call came in that provided additional
information: “a large crowd of people fighting, and one person was
armed with a firearm.” The 9-1-1 caller also stated there were
males and females dressed in all black Muslim attire. The caller,
however, noted that he could not see their faces.
Upon arrival at the location, the police officers observed Appellee
and another man entering a red Dodge Durango. Officer
Kamedula testified that “after looking in our direction, they
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entered the vehicle and turned the vehicle on.” The other people
in the area were “further up walking towards the high rise
building.” Officer Kamedula immediately approached Appellee’s
vehicle and opened the door. Appellee exited the vehicle, swatted
the officer’s hand and began to run away. Officer Kamedula
observed Appellee throwing a black pistol shaped object to the
ground. Following the apprehension of Appellee, Officer Kamedula
searched him and recovered drugs.
A second set of police officers arrived at the scene shortly
thereafter. Officer James Mooney testified that he found the
firearm in the vicinity where Officer Kamedula witnessed Appellee
throwing the pistol shaped object. Appellee was approximately
fifty (50) yards away when the firearm was recovered.
See Suppression Court Opinion (SCO), 2/7/17, at 2 (citations to the record
omitted).
Appellee was arrested and charged with persons not to possess
firearms, firearms not to be carried without a license, intent to possess a
controlled substance, and carrying firearms in public in Philadelphia.1 Prior to
trial, Appellee filed a suppression motion.
At the suppression hearing, following the testimony of Officers
Kamedula, Barrie, and Mooney, as well as Appellee’s testimony in his own
defense, the court granted Appellee’s motion to suppress, finding that officers
had no reasonable suspicion at the time of the stop. See SCO at 3. The
Commonwealth filed a motion for reconsideration, which was denied. The
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1 See 18 Pa.C.S. § 6105(a)(1), 18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-
113(a)(16), and 18 Pa.C.S. § 6108, respectively.
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Commonwealth timely filed this interlocutory appeal. 2 The Commonwealth
filed a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and the suppression court issued a responsive opinion.
On appeal, Appellant raises a single issue for our review:
Did the lower court err in suppressing the recovered gun and
illegal drugs found on [Appellee’s] person where police officers,
arriving at a high crime area in response to a call of a person with
a gun, saw [Appellee], fitting the description, look in their
direction; flee into a parked vehicle; strike one of the officers when
told to exit the vehicle; flee on foot; and discard a gun?
Appellant’s Brief at 1.
The Commonwealth argues that the court erred in granting Appellee’s
motion to suppress. See Appellant’s Brief at 6. The Commonwealth contends
that police were within their authority to approach Appellee when they first
saw him, arguing that reasonable suspicion was unnecessary. Id. at 6-7.
Further, the Commonwealth contends that notwithstanding the court’s
characterization of Appellee “walking” towards the car, Appellee was actually
attempting to “withdraw in order to avoid the police,” or flee, which provided
officers with reasonable suspicion to stop. Id. at 8.
When the Commonwealth appeals from a suppression order:
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2 In its notice of appeal, the Commonwealth certified that the trial court’s
order denying its motion to admit evidence of prior bad acts pursuant to
Pa.R.E. 404(b) terminates or substantially handicaps the prosecution. See
Pa.R.A.P. 311(d) (permitting interlocutory appeal where Commonwealth
certifies with its notice of appeal that order terminates or substantially
handicaps prosecution). Thus, the appeal is properly before us. See
Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa. Super. 2016).
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we follow a clearly defined standard of review and consider only
the evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012).
We note, initially, that
[t]here are three types of encounters between law enforcement
officials and private citizens. A “mere encounter” need not be
supported by any level of suspicion but carries no official
compulsion to stop or respond. An “investigative detention” must
be supported by reasonable suspicion and subjects the suspect to
a stop and a period of detention, but it does not have the coercive
conditions that would constitute an arrest. The courts determine
whether reasonable suspicion exists by examining the totality of
the circumstances. An arrest, or “custodial detention,” must be
supported by probable cause.
In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).
Here, our analysis hinges on the level of suspicion required at the
moment of the stop, i.e., whether it constituted a mere encounter or an
investigative detention. Our Court has previously observed that
[t]o determine whether a mere encounter rises to the level of an
investigatory detention, we must discern whether, as a matter of
law, the police conducted a seizure of the person involved. To
decide whether a seizure has occurred, a court must consider all
the circumstances surrounding the encounter to determine
whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not free
to decline the officer’s request or otherwise terminate
the encounter. Thus, the focal point of our inquiry must be
whether, considering the circumstances surrounding the incident,
a reasonable person innocent of any crime, would have thought
he was being restrained had he been in the defendant’s shoes.
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Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa. Super. 2002)
(citations omitted).
Here, a reasonable person would have concluded that he was not free
to leave. Appellee had gotten into the passenger seat of the car, and
Appellee’s companion had turned the car on. See Notes of Testimony (N.T.),
4/15/16, at 20, 140. Officers Kamedula and Barrie approached the car from
both sides, and Officer Kamedula ordered Appellee to put his hands in the air
and step out of the car. Id. at 20-22, 140. Officer Kamedula then opened
the car door, effectively preventing the men from driving away. Id. Because
a reasonable person would not have felt free to terminate this encounter, it
constituted an investigatory detention and, accordingly, required reasonable
suspicion. See Reppert, 814 A.2d at 1201-02.
Thus, we must determine whether the officers had reasonable suspicion
to stop Appellee’s car in the first instance. See Commonwealth v. Zhahir,
751 A.2d 1153, 1156 (Pa. 2000) (citing Terry v. Ohio, 88 S. Ct. 1868, 1879
(1968)) (noting that the justification of a ‘stop and frisk’ must be justified at
its inception and be reasonably related in scope to the circumstances justifying
the interference in the first place). It is true that evasive and suspicious
behavior in a high crime area, unprovoked flight, and training and experience,
may provide the requisite reasonable suspicion. See Commonwealth v.
McCoy, 154 A.3d 813, 819 (Pa. Super. 2017) (emphasis added). However,
mere presence in the vicinity of a recently reported crime does not justify a
stop. See Commonwealth v. Jackson, 519 A.2d 427, 432-33 (Pa. Super.
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1986). Further, merely walking away from police officers on their approach
in a high crime area does not, without more, provide officers with reasonable
suspicion to justify an investigatory stop and search. See In re J.G., 860
A.2d 185, 189 (Pa. Super. 2004).
Here, the suppression court concluded that Officer Kamedula did not
have reasonable suspicion to stop Appellee. Particularly, the court noted that
the 911 call did not contain any flash information or description of the
combatants but only stated that males and females were fighting in front of
the housing project and one of them was armed. See N.T. at 139. The
combatants were dressed in all black, and their faces were concealed. Id.
There was no description of a car, red Dodge Durango or otherwise, involved
in the fight. Id. Thus, there was no description linking the crime to Appellee.
Further, although the Commonwealth now attempts to characterize Appellee’s
initial movements toward the car as “fleeing” or “evading,” as the suppression
court correctly notes, Officer Kamedula’s own testimony establishes that
Appellee “walked” towards the car. Id. at 140; see also SCO at 4. Although
Officer Kamedula opined that Appellee got into the vehicle to leave the scene,
that is of no moment.
As the suppression court observed,
It is not suspicious or illegal behavior to look in the direction of
police officers. Nor does [Appellee’s] mere presence in the vicinity
of a recently reported crime justify a stop. Further, walking away
from the police does not rise to reasonable suspicion. The
behavior and actions specified above do not rise to reasonable
suspicion of criminal activity afoot. Officer Kamedula had no legal
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basis, as clearly articulated by his own testimony, to stop
[Appellee], and thus any subsequent behavior and/or evidence
should be suppressed as fruit of the poisonous tree.
See SCO at 4-5 (citations omitted).
We agree. Accordingly, for the reasons outlined above, the suppression
court properly granted Appellee’s motion and suppressed all physical evidence
recovered from the scene. See Miller, 56 A.3d at 1278-79.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/18
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