Com. v. Serrano, J.

J-A06035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNNY RICO SERRANO :
:
Appellant : No. 963 MDA 2018
Appeal from the Judgment of Sentence June 8, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000621-2016
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 05, 2019
Johnny Rico Serrano (Serrano) appeals from his order of judgment of
sentence entered in the Court of Common Pleas of Berks County (trial court)
and imposed after he was convicted of possession of a weapon without a
license. Serrano’s sole ground on appeal is that the trial court erred in denying
his motion to suppress the firearm that police obtained from his person when
he was stopped and frisked. We affirm.
I.
Officers Raymond Carter, Daniel Cedeno and Christopher Gaughan
testified at the suppression hearing and the trial court relied on their testimony
in making its findings of fact, which are summarized here. At approximately
10:00 p.m. on the date in question, Officer Carter was on patrol near the 800
block of Windsor Street. He heard six gunshots ring out a few blocks away
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* Retired Senior Judge assigned to the Superior Court.
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near the intersection of Ninth and Spring Street. He exited his vehicle and
ran to the 900 block of Ninth Street where a white male flagged him down to
say that “the guy you are looking for is wearing a red hoody on, over on Spring
Street.” Trial Court Opinion, filed 02/09/17, at 2.
Officer Carter reported the gunshots over his police radio and conveyed
what the unidentified white male had told him. Not long after, Training Officer
Jared Abby stopped a male wearing a red hoody near the 900 block of Spring
Street. Officer Carter went to that area and searched the suspect but found
no weapon. The suspect was released a few minutes after he was stopped.
Meanwhile, as Officer Cedeno was also searching for an armed suspect,
an unidentified woman approached on foot to tell him that a man in red who
had discharged a weapon was walking west on Spring Street. The woman
said that the man in red seemed intoxicated. She declined to identify herself
because she did not want to be involved with the investigation. Officer Cedeno
testified that he found the woman credible.
Officer Cedeno relayed over police radio to Officer Gaughan what the
unidentified woman had said. Although they were returning to the 900 block
of North Eighth Street from different locations, they arrived at the same time
and saw a man wearing red who appeared to be staggering. It was Serrano,
who Officer Gaughan had briefly encountered earlier that evening soon after
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the gunshots.1 The two officers immediately drew their weapons and ordered
Serrano not to move.
The two officers frisked Serrano and recovered an unloaded 9 mm
handgun. Serrano was arrested and charged with several firearm-related
offenses. The case proceeded to a bench trial.
Serrano moved to suppress the firearm on the ground that the search
was the tainted fruit of an illegal seizure.2 At the conclusion of the suppression
hearing, the trial court ruled that the police had lawfully detained and frisked
Serrano. The trial court acknowledged that “reports from anonymous
witnesses are suspect,” but reasoned that they were sufficient to justify the
detention “because of the corroborating nature of the tips, the specificity of
the tips, and the ability of Officer Cedeno to [assess] the credibility of the
second tipster.” Id. at 6.
Serrano was found guilty of carrying a firearm without a license.3 He
was sentenced to a range of three to twenty-three months as well as three
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1Officer Gaughan himself had heard shots ring out that night. Moments later,
he seized Serrano but released him to assist Officer Carter in detaining another
suspect. Officer Gaughan encountered Serrano for the second time with
Officer Carter.
2Serrano had also moved to suppress his post-arrest statements to police,
which the Commonwealth conceded.
3 See 18 Pa.C.S. § 6106(a)(2).
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years of probation. He timely appealed, arguing that the two anonymous tips
were insufficient to give the police a legal basis to detain him because the tips’
allegation of illegality was not corroborated prior to the detention.4
II.
The United States Constitution prohibits “unreasonable searches and
seizures.” U.S. Const. Amendment IV; see also Pennsylvania Const. Art. 1,
§ 8. The extent of this constitutional protection depends on the nature of the
police-citizen interaction at hand.
Under state and federal law, such an interaction falls within one of three
categories: a “mere encounter,” an “investigative detention,” or a “custodial
detention,” which is equivalent to an arrest. See Commonwealth v. Ellis,
662 A.2d 1043, 1047-48 (Pa. 1995). These categories determine the burden
of proof as to the legality of the police intrusion and the admissibility of
evidence obtained as a result of it. The greater the intrusion, the greater the
burden on law enforcement to prove that it was constitutionally valid. If the
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4 The standard of review and applicable law are critical to the disposition of
this appeal. First, if “the suppression court’s factual findings are supported by
the record, we are bound by these findings and may reverse only if the court’s
legal conclusions are erroneous.” Commonwealth v. Freeman, 150 A.3d
32, 34-35 (Pa. Super. 2016). In deferring to those factual findings and
reviewing the conclusions of the law, an appellate court may not consider any
other evidence. Id. In this case, the suppression court’s findings of fact are
not in dispute.
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police action does not pass constitutional muster, then the resulting evidence
may be subject to exclusion at trial.
In a mere encounter, the use of force is limited such that a person would
not reasonably believe they are being detained. An investigative detention or
a “Terry stop” occurs when police use enough physical force or a show of
authority for a person to reasonably believe that they are not free to go. See
Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005) (citing
Terry v. Ohio, 392 U.S. 1, 88 (1968)). However, the use of force in an
investigatory detention falls short of the coercive conditions of an arrest. See
Barber, 889 A.2d at 592.
Police need no level of suspicion to justify a mere encounter; police need
“reasonable suspicion” of criminal activity to justify an investigative detention;
and police need “probable cause” to justify an arrest. See Commonwealth
v. Korn, 139 A.3d 249, 257–58 (Pa. Super. 2016). Courts must consider the
legality of police-citizen contact on a case-by-case basis, taking all relevant
circumstances into account. Commonwealth v. By, 812 A.2d 1250, 1254
(Pa. Super. 2002).
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Here, the parties agree that this case concerns an investigative
detention of Serrano.5 The issue is whether the police had reasonable
suspicion when they detained and frisked him.
Reasonable suspicion for an investigative detention must be supported
by “specific and articulable facts which, together with the rational inferences
therefrom, reasonably warrant the intrusion.” Barber, 889 A.2d at 593.
Reasonable suspicion may be drawn from the “totality of the circumstances.”
Commonwealth v. Wiley, 858 A.2d 1191, 1194 (Pa. Super. 2004).
“To justify a frisk incident to an investigatory [detention], the police
need to point to specific and articulable facts indicating the person they intend
to frisk may be armed and dangerous[.]” Commonwealth v. Myers, 728
A.2d 960, 963 (Pa. Super. 1999) (quoting Commonwealth v. Patterson,
591 A.2d 1075, 1078 (Pa. 1991)) (emphasis omitted). “[P]olice officers need
not personally observe the illegal or suspicious conduct [to justify a detention
or frisk], but may rely upon the information of third parties, including ‘tips’
from citizens.” Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super.
1998).
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5 In Serrano’s 1925(b) Statement of Matters Complained of on Appeal, he
averred that he was subjected to a custodial arrest, stating in the alternative
that an investigative detention took place. However, in his brief, Serrano only
asserted the latter claim. See Commonwealth v. Manigault, 462 A.2d 239,
240 (Pa. 1983) (holding that issues which are not argued or briefed on appeal
are abandoned and waived even if raised at trial).
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III.
Serrano contends that the police lacked reasonable suspicion for failure
to corroborate the tipsters’ allegation of illegality.6 However, just because
both witnesses are unidentified does not mean that they are unreliable.
Information given to police in person by an unidentified individual may
be considered trustworthy because it is possible to observe the demeanor of
such witnesses and assess their “veracity, reliability and basis of knowledge.”
See Commonwealth v. Martin, 705 A.2d 887, 892 (Pa. Super. 1997). Also,
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6 In support, Serrano relies on Florida v. J.L., 529 U.S. 266, 272 (2000),
where the United States Supreme Court held that an anonymous telephone
call may only give police reasonable suspicion to detain a suspect if the tip is
“reliable in its assertion of illegality, not just in its tendency to identify a
determinate person.” This means that when police receive an anonymous tip
over the phone, they may not detain a suspect based only on his appearance
and location, even where the tip warns that the suspect is armed. The police
must further develop reasonable suspicion by observing an indication of crime.
In addition to J.L., Serrano relies on two Pennsylvania cases in support of his
claim that he was illegally detained – Commonwealth v. Jackson, 698 A.2d
571 (Pa. 1997), and Commonwealth v. Hawkins, 692 A.2d 1068 (Pa.
1997). As in J.L., the courts held in those two cases that the phone calls of
“anonymous tipsters” did not give police reasonable suspicion because the
police had only confirmed the suspects’ location and physical appearance.
See Jackson, 698 A.2d at 575-76; Hawkins, 692 A.2d at 1070; see also
Commonwealth v. Mackey, 177 A.3d 221 (Pa. Super. 2017).
Prior to detaining the suspects, the police in J.L., Jackson and Hawkins did
not observe any indication that the person was armed as the anonymous
tipsters alleged. Unlike in the present situation, the tips were communicated
over the phone rather than face-to-face. Such tips are far less reliable than
those given at the scene of an alleged crime, even where the on-scene witness
is not identified by name. See Commonwealth v. Ransom, 103 A.3d 73,
78-79 (Pa. Super. 2014) (distinguishing Jackson and Hawkins on that
basis); Williams, 980 A.2d 671-72 (distinguishing anonymous phone calls
from police reports given to police on-scene by unidentified witnesses).
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information from an unidentified witness at the scene of a crime may be
reliable because “a person who knowingly gives false information to any law
enforcement officer with intent to implicate another” may be held criminally
liable. Williams, 980 A.2d 671-72; 18 Pa.C.S. § 4906 (imposing criminal
penalty for making a false crime report); see also Adams v. Williams, 407
U.S. 143 (1972) (officer justified in detaining defendant when informed on the
street that he was carrying narcotics and a gun and the informant was subject
to prosecution for making a false report); United States v. Valentine, 232
F.3d 350, 354-57 (3d. Cir. 2000) (noting that an in-person tip based on first-
hand account is more reliable than an anonymous telephone call).
In this case, the police were within earshot of gunfire and were already
investigating the shooting so they did not have to rely on a tip to confirm that
a crime had almost certainly occurred. When the two witnesses approached
the police officers, each gave independent and consistent descriptions of the
shooter as a man who was wearing red and walking down a nearby street.
One of the two witnesses, the unidentified white male, flagged down Officer
Carter to inform him that the suspect was wearing a red hoody and walking
near Spring Street. The other witness, the unidentified woman, told Officer
Cedeno that the man in red was intoxicated and this witness was found to be
credible. See Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super.
2014) (“In assessing the totality of the circumstances, a court must give
weight to the inferences that a police officer may draw through training and
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experience”). Within minutes of the gunshots and the two witnesses’ tips, the
police located Serrano in nearly the exact place where the witnesses claimed
he would be. See Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa.
2000) (it is significant when an anonymous tip predicts future behavior and
police can independently corroborate it).
Serrano was wearing red and he seemed to be staggering as if
intoxicated. He was walking within a few blocks of the area where two officers
had heard the gunshots. Officer Gaughan had even detained Serrano earlier
that evening in the immediate aftermath of the shooting before releasing him
to back up officers who were with another suspect. This prior contact
established that Serrano was in the area at the time a weapon was discharged.
See Commonwealth v. Kearney, 601 A.2d 346, 347-348 (Pa. Super. 1992)
(holding that the “reasonable suspicion . . . standard is met if the police
officer’s reasonable and articulable belief that criminal activity was afoot is
linked with his observation of suspicious or irregular behavior on behalf of the
particular defendant stopped.”) (citations and quotations omitted).
Additionally, the police were already investigating the shooting when
two witnesses approached them in the street. There was little possibility of a
false report of a crime or that the two witnesses had any nefarious aim when
reporting to the officers on scene. This made the two witnesses’ information
all the more reliable, giving the officers reasonable suspicion to stop and frisk
Serrano once he was spotted.
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In sum, the circumstances of this case gave the police reasonable
suspicion that Serrano was the person who had discharged his weapon. The
police legally detained him and the resulting frisk did not run afoul of the
constitutional prohibition against unreasonable searches and seizures because
the police justifiably suspected that Serrano had just committed a firearm-
related offense. See Commonwealth v. Walls, 53 A.3d 889, 894 (Pa.
Super. 2012) (holding that the police had reasonable suspicion to believe the
defendant was involved in criminal activity because of a number of factors,
including his “proximity to the location described in the flash, and [the
defendant’s] matching the description of the suspect”); Commonwealth v.
Brown, 996 A.2d 473, 477 (Pa. 2010) (“[a]n anonymous tip, corroborated by
independent police investigation, may exhibit sufficient indicia of reliability to
supply reasonable suspicion for an investigatory stop”); Williams, 980 A.2d
671-72 (affirming denial of suppression motion where police detained
defendant based on multiple tips from unidentified bystanders at the scene of
an offense in progress); Barber, 889 A.2d at 593-94.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/05/2019
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