Com. v. Aursby, J.

J-S77014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY AURSBY
Appellant No. 3082 EDA 2013
Appeal from the Judgment of Sentence entered September 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002749-2012
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 19, 2015
Jeffrey Aursby appeals from the judgment of sentence entered for his
convictions of violating the Uniform Firearms Act (VUFA). He argues the trial
court erred in denying his motion to suppress, because police officers lacked
reasonable suspicion to perform an investigative detention of him. We
affirm.
On January 12, 2012, Philadelphia Police Officer Leon Telesford and his
partner were on routine patrol at 24th and Indiana Streets in a marked
police vehicle.1 Officer Telesford was assigned to that area because of a
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*
Retired Senior Judge assigned to the Superior Court.
1
Unless otherwise noted, we take this summary from the Trial Court Rule
1925(a) Opinion, 6/20/14, at 1-3.
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recent string of robberies and shootings. He regarded the area as a “very
dangerous, high-crime, high-narcotics area.” See also N.T. Suppression,
7/15/13, at 14-15.
At about 11:43 p.m., Officer Telesford saw a man, later identified as
Appellant, walking near the 3000 block of 24th Street. Appellant was closely
following a second man walking northbound. Appellant was walking faster
than the second man, and closed the gap between them to about one car-
length. Appellant was also reaching for his waistband. Officer Telesford had
arrested numerous people for illegally carrying handguns. In his experience,
those people often carried their weapons in their waistbands. Based on his
experience and training, and the above circumstances, Officer Telesford
believed Appellant was about to rob the second man.
The officers pulled next to Appellant in the police car with the
emergency lights and siren off. Before the officers stepped outside,
Appellant looked at the officers, and took off running. In response, the
officers yelled, “Police! Stop! Let me see your hands!” Appellant did not
comply, so the officers got out of their car and followed him on foot
westbound, down Indiana Street. When Officer Telesford was within a few
feet of Appellant, he discarded a handgun. Officer Telesford apprehended
Appellant, and his partner retrieved the handgun approximately five feet
from the point of detention.
Appellant moved to suppress the evidence of his apprehension and
subsequent arrest. The trial court denied the motion. After a waiver trial,
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the court convicted Appellant of three VUFA2 and sentenced him to 5 to 10
years in prison. This appeal followed.
On appeal, Appellant contends the stop was illegal. He argues that
touching his waistband while walking behind another person at 11:30 p.m. is
insufficient reasonable suspicion of criminal activity to justify the officers’
subsequent attempt to stop him. He further contends his abandonment of
the firearm was the result of police coercion.
Where a trial court denies a motion to suppress,
we must determine whether the record supports the trial court’s
factual findings and whether the legal conclusions drawn
therefrom are free from error. In so doing, we may 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.[3] Where the record
supports the findings of the suppression court, we are bound by
those facts and may reverse only if the court erred in reaching
its legal conclusions based upon the facts.
Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014)
(quotation omitted).
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2
18 Pa.C.S.A. §§ 6105 (persons not to possess firearms), 6106 (carrying a
firearm without a license), and 6108 (carrying a firearm on public property
or streets in Philadelphia).
3
Our Supreme Court has clarified that the scope of appellate review is
limited to the evidence produced at the suppression hearing—not the entire
record. In the Interest of L.J., 79 A.3d 1079 (Pa. 2013). The decision in
L.J is not retroactive. Id. at 1088-89. The suppression hearing in this case
occurred on July 15, 2013, and L.J. was decided on October 30, 2013.
Therefore, it does not apply here.
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“The Fourth Amendment permits brief investigative stops . . . when a
law enforcement officer has a particularized and objective basis for
suspecting the particular person stopped of criminal activity.”
Commonwealth v. Carter, --- A.3d ---, 2014 PA Super 265, 2014 WL
6756271, at *3, 2014 Pa. Super. LEXIS 4539, at *8 (filed Dec. 2, 2014) (en
banc) (quoting Navarette v. California, 134 S. Ct. 1683, 1687 (2014)).
Reasonable suspicion is judged based on the totality of the circumstances.
In the Interest of D.M. (D.M. II), 781 A.2d 1161, 1163 (Pa. 2001).
Under the Fourth Amendment and Article I, § 8 of the Pennsylvania
Constitution, unprovoked flight in a high-crime area is sufficient reasonable
suspicion to justify a Terry4 stop, i.e., an investigative detention. See
Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); D.M. II, 781 A.2d at
1164, 1165 n.2 (applying Wardlow and declining to adopt greater state
constitutional rights).
Under the totality of the circumstances, Officer Telesford had
reasonable suspicion to perform an investigative detention of Appellant.
Officer Telesford was on patrol in a marked police car in a neighborhood
known for violent crime and drug trafficking. In fact, he was specifically
tasked to patrol that area because of a recent string of violent crimes. It
was almost midnight, and Officer Telesford saw Appellant walking down the
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4
Terry v. Ohio, 392 U.S. 1 (1968).
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street, making movements that looked to Officer Telesford like a robbery
was about to occur. Officer Telesford positioned his police car next to
Appellant with the lights and sirens off. Appellant immediately fled before
the officers could say anything to him.
Indeed, prior to Appellant’s flight, police officers made less of a
showing of authority than in Wardlow. In Wardlow, police were driving in
a four-car caravan through a neighborhood known for drug trafficking,
prompting Wardlow to flee—an action, which, according to the Supreme
Court of the United States, constituted reasonable suspicion to stop. See
Wardlow, 528 U.S. at 121-22, 124.
Appellant misses the point in attempting to minimize the suspicious
nature of his behavior. Terry does not require police to observe
unquestionably criminal behavior before they may perform an investigative
detention. Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super.
2014) (quoting Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa.
2004)). Potential innocent explanations for Appellant’s behavior do not
negate reasonable suspicion. Id.Appellant argues that “intrusive police conduct prompted by nothing
more substantial than an individual’s decision to depart when approached by
the police[] has traditionally been recognized in Pennsylvania as unlawful.”
Appellant’s Brief at 15 (citing Commonwealth v. DeWitt, 608 A.2d 1030(Pa. 1992); Commonwealth v. Barnett, 398 A.2d 1019 (Pa. 1979); and
Commonwealth v. Jeffries, 311 A.2d 914 (Pa. 1973)). Those three cases
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generally held that flight alone did not constitute reasonable suspicion
under the Fourth Amendment. DeWitt, 608 A.2d at 1033-34; Barnett, 398
A.2d at 1021; Jeffries, 311 A.2d at 916. Wardlow, however, holds that
unprovoked flight from police in a high-crime area constitutes
reasonable suspicion. Wardlow, 528 U.S. at 124-25. To the extent
Appellant attempts to rely upon DeWitt, Barnett, and Jeffries, his reliance
is misplaced. None of those cases involved flight from a high-crime area, as
here. See DeWitt, 608 A.2d at 302 (noting stop occurred in a parking lot of
a church which had complained to police about suspicious vehicles, but not
noting whether stop occurred in high-crime area); Barnett, 398 A.2d at 213
(listing facts found by suppression court, which did not include whether area
of police stop was a high-crime area); Jeffries, 311 A.2d at 325-26 (holding
defendant’s “simply walking on a public street in Pittsburgh in broad
daylight,” quickening his pace upon seeing a police officer, and then running
after the officer gave chase was insufficient reasonable suspicion to stop).
In sum, the trial court did not err in denying Appellant’s motion to
suppress. The arresting officer noticed Appellant acting suspiciously in a
high-crime area at night, and Appellant fled unprompted when he saw the
police officers’ marked vehicle. Under the totality of the circumstances, the
officers possessed reasonable suspicion of criminal activity. We affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judge Jenkins joins the Memorandum.
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Judge Strassburger files a Concurring Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2015
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