Com. v. Lingard, A.

J-S29003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON BRANDON LINGARD
Appellant No. 307 WDA 2014
Appeal from the Judgment of Sentence January 23, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012899-2012
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 08, 2015
Appellant, Aaron Brandon Lingard, appeals from the judgment of
sentence entered in the Court of Common Pleas of Allegheny County. On
appeal, Lingard maintains that the suppression court erred in finding that an
investigatory detention, conducted after an officer observed a portion of a
handgun in Lingard’s waistband, was supported by reasonable suspicion.
We disagree and affirm.
On September 21, 2012, Officer Michael Catanzaro and a partner were
on “saturation patrol” in a high-crime section of Wilkinsburg Borough. N.T.,
Suppression Hearing, 12/3/13, at 4. During a saturation patrol, the officers
do not answer any calls and instead “conduct mere encounters” with citizens
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S29003-15
in an effort to gather intelligence on the area. Id., at 8. At approximately
2:30 in the morning, he pulled his police cruiser up behind two males
walking down the street, one of whom would turn out to be Lingard. See
id., at 6. As he exited the cruiser, Officer Catanzaro “spoke loudly” and
asked if he could “talk with them to have a moment.” Id. The males turned
and said, “What’s up?” Id.
Officer Catanzaro then explained to him why there was a police
presence in the area and discussed “the other problems in the area.” Id. At
one point, he asked the pair, “You guys don’t have any guns on you, do
you?” Id., at 7. The men did not respond. See id. But Lingard “placed his
hands out to his side” and his sweatshirt lifted up. At that point, Officer
Catanzaro saw what he “believed to be a portion of a gun in this front waist
area.” Id. Officer Catanzaro immediately “secured the weapon” and placed
Lingard in handcuffs. Id. He explained to Lingard that he was detaining
him “for further investigation to check to see if he had a permit to carry that
weapon.” Id. Officer Catanzaro read Lingard his Miranda rights and asked
if he had a permit for the handgun. See id. Lingard did not respond. See
id., at 8. A check conducted by dispatch revealed that Lingard did not have
a permit to carry a concealed handgun. See id., at 7. Officer Catanzaro
then placed Lingard under arrest.
Prior to trial, Lingard moved to suppress the handgun, arguing that its
seizure was the result of an illegal investigatory detention. The suppression
-2-
J-S29003-15
court denied the motion after a hearing. The matter proceeded to a bench
trial on stipulated facts. The trial court found Lingard guilty of firearms not
to be carried without a license, 18 Pa.C.S.A. § 6106(a)(2), and carrying
loaded weapons other than firearms, 18 Pa.C.S.A. § 6106.1(a), a summary
offense.1 The trial court imposed a sentence of one year of probation. This
timely appeal followed.
On appeal, Lingard maintains that the suppression court erred in
denying his suppression motion as the investigatory detention was not
supported by reasonable suspicion.
Our standard of review when an appellant appeals the denial of a
suppression motion is as follows.
[W]e are limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. We may consider the
evidence of the witnesses offered by the prosecution, as verdict
winner, and only so much of the defense evidence that remains
uncontradicted when read in the context of the record as a
whole. We are bound by facts supported by the record and may
reverse only if the legal conclusions reached by the court below
were erroneous.
____________________________________________
1
We are unsure how Lingard was convicted of violating § 6106.1(a). That
statute provides as follows: “Except as provided in Title 34 (relating to
game), no person shall carry a loaded pistol, revolver, shotgun or rifle, other
than a firearm as defined in section 6102 (relating to definitions), in any
vehicle.” (emphasis added). See also 5A Summ. Pa. Jur. 2d Criminal Law
§ 30:42 (2d ed.); 14 West’s Pa. Prac., Crim. Offenses & Defenses § 1:545
(6th ed.). Here, Lingard was carrying the weapon on his person—not in a
vehicle, but while standing in the street. In any event, Lingard does not
challenge its application in this appeal.
-3-
J-S29003-15
Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)
(citation omitted).
The record supports the factual findings set forth earlier. Accordingly,
we turn to an examination of the suppression court’s legal conclusions. The
court concluded that the seizure of the weapon was lawful. This legal
conclusion is correct.
Preliminarily, we note that Lingard agrees that Officer Catanzaro’s
initial interaction with him and his companion was a mere encounter as
“nothing in the record suggests that the two individuals were not free to
leave.” Appellant’s Brief, at 12. See Commonwealth v. Fuller, 940 A.2d
476, 479 (Pa. Super. 2007) (“A mere encounter between police and a citizen
need not be supported by any level of suspicion, and carr[ies] no official
compulsion on the part of the citizen to stop or to respond.”). Lingard
maintains that the interaction became an illegal detention when Officer
Catanzaro moved to the side of Lingard, seized the weapon, and placed him
in handcuffs. See Appellant’s Brief, at 12. It was illegal, Lingard contends,
“because no reasonable person would feel they were free to leave when an
officer places their hands on them after inquiring about firearms.” Id.We agree with Lingard that he was certainly not free to leave at that
point. But that fact does not render the detention illegal. An investigative
detention, or Terry stop, which “subjects a suspect to a stop and a period of
detention, but does not involve such coercive conditions as to constitute an
-4-
J-S29003-15
arrest, requires a reasonable suspicion that criminal activity is afoot.”
Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007) (citing
Terry v. Ohio, 392 U.S. 1 (1968)).
“[T]o establish grounds for reasonable suspicion, the officer must
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.” Commonwealth v. Reppert,
814 A.2d 1196, 1204 (Pa. Super. 2002) (en banc); see also Florida v.
Royer, 460 U.S. 491, 498 (1983) (“Terry created a limited exception to this
general rule: certain seizures are justifiable under the Fourth Amendment if
there is articulable suspicion that a person has committed or is about to
commit a crime.”).
“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 the [intrusion] warrant a man of reasonable caution in the belief
that the action taken was appropriate.” Reppert, 814 A.2d at 1204(internal quotation marks and citation omitted; brackets in original). “[T]he
court must be guided by common sense concerns that give preference to the
safety of the police officer during an encounter with a suspect where
circumstances indicate that the suspect may have, or may be reaching for, a
-5-
J-S29003-15
weapon.” Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa. Super.
2006) (emphasis omitted).
Here, as detailed above, during a mere encounter, Lingard moved his
arms in such a way that his sweatshirt lifted and Officer Catanzaro observed
what he believed to be a portion of a handgun protruding from Lingard’s
waistband. At that point, Officer Catanzaro certainly had reasonable
suspicion to investigate further. See, e.g., Commonwealth v. Robinson,
600 A.2d 957, 959 (Pa. Super. 1991) (“[P]ossession of a concealed firearm
by an individual in public is sufficient to create a reasonable suspicion that
the individual may be dangerous, such that an officer can approach the
individual and briefly detain him in order to investigate whether the person
is properly licensed.”).
For his safety, the law permitted Officer Catanzaro to secure the
weapon during the pendency of the investigation. See Commonwealth v.
Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006) (finding officer was
permitted to “take hold” of a handgun during a valid Terry stop to insure
officer safety). He was also permitted, to ensure his safety, to place Lingard
in handcuffs. See Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa.
Super. 2005) (“[F]or their safety, police officers may handcuff individuals
during an investigative detention.”); United States v. Pontoo, 666 F.3d
20, 30 (1st Cir. 2011) (“When officer safety is a legitimate concern, a Terry
stop appropriately may involve the application of handcuffs[.]”).
-6-
J-S29003-15
Safety was certainly a legitimate concern in this case. Two individuals
were involved; it was in the early morning hours. The area, as described by
Officer Catanzaro, was a high crime area. See N.T., Suppression Hearing,
12/3/13, at 4 (describing area of patrol as the scene of “probably three
dozen plus nonfatal shootings” among numerous other serious crime
problems). And, of course, Lingard was armed during the encounter.
The main thrust of Lingard’s argument is to try to disparage the
credibility of Officer Catanzaro. For instance, he characterizes Officer
Catanzaro’s observation of the handgun as “nothing more than a mere
hunch.” Appellant’s Brief, at 13. He further claims that the officer “did not
see a bulge, an outline of a gun, the gun itself, any furtive movements, or
grabbing of the waistband or anything else that would suggest what he
observed was a gun.” Id.An argument based on refuting the suppression court’s credibility
determinations is unwinnable on appeal. “With respect to factual findings,
we are mindful that it is the sole province of the suppression court to weigh
the credibility of the witnesses. Further, the suppression court judge is
entitled to believe all, part or none of the evidence presented.”
Commonwealth v. Tam Thanh Nguyen, ___ A.3d ___, ___, 2015 WL
1883050, *5 (Pa. Super., filed April 27, 2015) (citation omitted). Officer
Catanzaro testified that he observed what he believed to be a handgun in
Lingard’s waistband. The suppression court credited this testimony.
-7-
J-S29003-15
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
-8-