Com. v. Colbert, L.

J-S33011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LACY COLBERT
Appellant No. 987 WDA 2015
Appeal from the Judgment of Sentence May 20, 2015
in the Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-CR-0014964-2014
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED: May 17, 2016
Appellant, Lacy Colbert, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas following his non-
jury trial convictions for firearms not to be carried without a license 1 and
resisting arrest.2 Appellant contends the trial court erred in denying his
motion to suppress evidence. We affirm.
On August 7, 2014, Appellant was arrested for the above crimes. On
April 20, 2015, he filed a motion to suppress evidence claiming police did not
have probable cause to arrest Appellant. Mot. to Suppress, 4/20/15, at 1-
4. Specifically, Appellant averred he “was pursued under the mistaken belief
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6106(a)(1).
2
18 Pa.C.S. § 5104.
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that he was warrant suspect Zachary Threats and based on this mistaken
belief he was pursued and unlawfully arrested.” Id. at 3.
The trial court held a suppression hearing on May 20, 2015, at which
the Commonwealth presented the testimony of Detective Calvin Kennedy of
the Pittsburgh Police Department. Appellant did not present any evidence.
Following the hearing, the trial court made the following findings of fact and
conclusions of law:
That Officer Calvin Kennedy, an officer with 21 years
[of] experience with the Pittsburgh Police
Department with a special focus in professional
development in the field of narcotics since 2001, and
also has training in firearms, firearms recognition of
potentially armed individuals based on various
factors such as hand movements, certain
movements toward certain areas of the body,
clothing, bulges, things of that nature. Also[, he]
made hundreds of firearms arrests during his years
of experience on the Pittsburgh Police Force.
On August 5 of 2014, there was a broadcast, a
BOLO,[3] . . . a warrant for a one, Zachary Threats . .
. for homicide. Mr. Threats was known to Officer
Kennedy as early as 2012 by virtue of his criminal
activity as well as his stature, physical stature to
Officer Kennedy. In this particular instance, besides
Officer Kennedy’s personal knowledge of his
propensity for violence and danger. In this instance
the particular BOLO was that Mr. Threats would not
surrender voluntarily, and he was armed and
dangerous. He was known to be a person who
frequented the North Side Sandusky Court area.
Sandusky Court itself being known as a high crime
area, guns , drugs, assaults, and criminal homicide.
3
A “BOLO” is a notification for police to “be on the lookout.” See N.T.,
5/20/15, at 5.
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On August 7, at 11:30 p.m. Officer Kennedy and
his colleagues were in Sandusky Court area looking
for Mr. Threats. They noticed a group of men
standing near a building. Amongst them was a
person of tall stature who fit the description of Mr.
Threats. The officers formulated a plan to approach
that person, to place Mr. Threats, if in fact it was Mr.
Threats under arrest at that juncture. The plan
itself, the particulars were not contested and are of
record.
During the course of the execution of the plan,
Officer Kennedy, as well as at least two other
officers, approached a group of men. They were
identified [as police officers] by virtue of their
badges being displayed prominently on their chests.
They came up to the group of men. [Appellant] was
amongst the group of men and also was the person
who Officer Kennedy believed to be Mr. Threats by a
matching description or matching stature. The group
was illuminated by virtue of flashlights. At that point
in time [Appellant] grabbed his waistband, he looked
left and right and ran into an apartment inside of
Sandusky Court. He was pursued by Officer
Kennedy, still under the belief that this was Mr.
Threats. As they went through the doorway, Officer
Kennedy further identified himself as Pittsburgh
Police, grabbed [Appellant] by the sweatshirt, the
hood of his sweatshirt, and spun him around. Upon
spinning him around, he noticed a weapon in his
waistband, eventually turned out to be .357 Taurus.
A struggle ensued and [Appellant] was eventually
arrested.
. . . The [c]ourt finds in this instance that Officer
Kennedy and his colleagues were properly identified,
they were on the premises in the area legally, and
they were about to execute a warrant. At that point
in time, [Appellant] displayed not only the physical
characteristics of the person to be apprehended, but
also at that juncture exhibited conduct consistent
with possession of a weapon, including reaching for
his waistband, looking left and right and then flight.
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[T]he [c]ourt finds there was reasonable suspicion
and eventually . . . probable cause, and the motion
to suppress is denied.
N.T., 5/20/15, at 27-30.
Appellant proceeded to a stipulated, non-jury trial, at which the trial
court found him guilty of the aforementioned offenses. The court sentenced
him to two years’ probation for the firearms offense and two to four days’
incarceration on resisting arrest. Sentencing Order, 5/20/15.
Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925 statement. The trial court authored a responsive opinion.
On appeal, Appellant raises the following issue for our consideration:
I. Did the police violate [Appellant’s] rights under the
Fourth Amendment of the United States Constitution
and Article 1 Section 8 of the Pennsylvania
Constitution by seizing his person without reasonable
suspicion, and, as a result, the trial court erred in
not suppressing the fruits of that constitutional
error?
Appellant’s Brief at 4.
Appellant contends he was “seized” the moment police officers
illuminated him with their flashlights and “demanded to know what was
going on.” Id. at 15. He argues the “only point of suspicion, and the sole
reason” the officers approached Appellant was that he, like Mr. Threats, is
tall in stature and such a “glaringly vague description” is insufficient to
justify the seizure. Id. at 18 (emphasis in original). Alternatively, Appellant
argues he was seized when Detective Kennedy began chasing him, and that
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Detective Kennedy’s observations prior to the chase did not give rise to a
reasonable suspicion of criminal activity. Id. at 20-24. We disagree.
Our standard of review over a denial of a suppression motion is well
settled.
An appellate court may consider only the
Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted
when read in the context of the record as a whole.
Where the record supports the factual findings of the
trial court, the appellate court is bound by those
facts and may reverse only if the legal conclusions
drawn therefrom are in error. However, it is also
well settled that an appellate court is not bound by
the suppression court’s conclusions of law.
* * *
In appeals from suppression orders, our scope of
review is limited to the evidence presented at the
suppression hearing.
Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)
(citations and footnote omitted).
The Fourth Amendment of the Federal Constitution
and Article I, Section 8 of the Pennsylvania
Constitution protect individuals from unreasonable
searches and seizures. To secure the right of
citizens to be free from such [unreasonable]
intrusions, courts in Pennsylvania require law
enforcement officers to demonstrate ascending levels
of suspicion to justify their interactions with citizens
as those interactions become more intrusive. We
have long recognized that there are three levels of
intrusion involved in interactions between members
of the public and the police. The first is a mere
encounter, which requires no level of suspicion at all.
The second level is an investigative detention, which
must be supported by reasonable suspicion. Finally,
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the third level is an arrest or custodial detention,
which must be supported by probable cause.
Commonwealth v. Walls, 53 A.3d 889, 892-93 (Pa. Super 2012)
(quotation marks and citations omitted).
“Th[e Pennsylvania Supreme] Court and the United States Supreme
Court have repeatedly held a seizure does not occur where officers merely
approach a person in public and question the individual or request to see
identification.” Commonwealth v. Lyles, 97 A.3d 298, 303 (Pa. 2014).
However, police pursuit of a citizen constitutes a seizure, which must be
supported by either probable cause or reasonable suspicion. In re D.M.,
781 A.2d 1161, 1164 (Pa. 2001). Accordingly, we reject Appellant’s claim
that he was seized when officers merely approached Appellant and
“demanded to know what was going on.”4 See Appellant’s Brief at 15;
Lyles, 97 A.3d at 303. Nevertheless, Appellant was subject to a police
seizure when he was pursued. See In re D.M., 781 A.2d at 1164.
In In re D.M., the Pennsylvania Supreme Court addressed the import
unprovoked flight has on a determination of reasonable suspicion.
In the seminal case of Terry v. Ohio, 392 U.S. 1, []
(1968), the United States Supreme Court indicated
that police may stop and frisk a person where they
4
Detective Kennedy testified when he approached Appellant, “I illuminated
the group of males, including, [Appellant]. At that time I basically said what
are you guys doing.” N.T. at 9. Appellant characterizes this encounter as
an “interrogation” and asks this Court to infer “authoritative tones” by
police. Appellant’s Brief at 16 n.1. Pursuant to the standard of review by
which we are bound, we decline to do so. See Caple, 121 A.3d at 516-17.
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had a reasonable suspicion that criminal activity is
afoot. In order to determine whether the police had
a reasonable suspicion, the totality of the
circumstances—the whole picture—must be
considered. Based upon that whole picture the
detaining officers must have a particularized and
objective basis for suspecting the particular person
stopped of criminal activity.
* * *
In Wardlow,[5] the Chicago police sent a four-car
caravan into a high crime area to investigate drug
activity. One of the officers in the last vehicle
observed the respondent on a corner with an opaque
bag in his hand. The respondent looked at the
officers and fled. The officers cornered the
respondent and upon exiting their car, immediately
conducted a brief pat-down search for weapons.
During the pat-down search of the respondent, the
officer discovered a gun. The issue before the court
was whether sudden flight in a high crime area
created a reasonable suspicion justifying a Terry
stop.
In explaining that such a seizure was justified, the
Court reiterated the Terry standard and concluded
that an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop
when the officer has a reasonable, articulable
suspicion that criminal activity is afoot. The Court
acknowledged that mere presence in a high crime
area was insufficient to support a finding of
reasonable suspicion. However, a court could
consider the fact that the stop occurred in a high
crime area in assessing the totality of the
circumstances. Similarly, the Court held that
unprovoked flight could be considered among the
relevant contextual considerations, since nervous,
evasive behavior is a pertinent factor in determining
reasonable suspicion and [h]eadlong flight—
5
Illinois v. Wardlow, 528 U.S. 119 (2001).
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wherever it occurs—is the consummate act of
evasion. . . . Based upon respondent’s unprovoked
flight in the high crime area, the Court concluded
that the officer was justified in suspecting that
criminal activity was afoot.
Following this decision, it is evident that
unprovoked flight in a high crime area is sufficient to
create a reasonable suspicion to justify a Terry stop
under the Fourth Amendment.
Id. at 1163-64 (some citations and quotation marks omitted).
This Court clarified “nervous, evasive behavior and headlong flight all
provoke suspicion of criminal behavior in the context of response to police
presence.” Commonwealth v. Washington, 51 A.3d 895, 899 (Pa.
Super. 2012) (emphasis added).
Instantly, the uncontradicted testimony of Detective Kennedy
established he was aware of a homicide warrant for a Zachary Threats, with
whom he was personally familiar; he was informed Threats “would be” in
Sandusky Court armed with an assault rifle; he knew Sandusky Court to be
a high crime area;6 he observed Appellant in Sandusky Court and believed
he may be Threats; he approached Appellant, with his badge displayed,
illuminated his flashlight, and asked a question; and Appellant then grabbed
his waistband, looked left and right, and fled. N.T. 5-9, 27-30.
6
Specifically, Detective Kennedy elaborated there were “numerous guns,
numerous drugs, there have been numerous aggravated assaults, shootings,
[and] homicides” in that area. N.T. at 9-10.
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We conclude the record amply supports that Detective Kennedy had
sufficient reasonable suspicion to pursue and seize Appellant. See Caple,
121 A.3d at 516-17. Appellant was not seized upon Detective Kennedy’s
approach and request for information. See Lyles, 97 A.3d at 303. At the
time of Appellant’s seizure, Detective Kennedy observed Appellant (1) in a
high-crime area, (2) exhibit behavior consistent with possession of a
firearm, and (3) flee in response to police presence.7 See In re D.M., 781
A.2d at 1163-64; Washington, 51 A.3d at 898.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
7
Appellant acknowledges the police badges were “clearly displayed around
their necks” yet avers he “did not know he was running from police.”
Compare Appellant’s Brief at 15, 16, 18, with id. at 22. The evidence, in
the light most favorable to the Commonwealth, supports Appellant was
aware he was fleeing in response to police presence. See Caple, 121 A.3d
at 516-17; Washington, 51 A.3d at 899.
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