Com. v. Anderson, E.

J-A32036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN ROBIN ANDERSON,
Appellant No. 1329 EDA 2016
Appeal from the Judgment of Sentence March 28, 2016
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0000334-2015
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 07, 2017
Appellant, Edwin Robin Anderson, appeals from the judgment of
sentence1 imposed following his bench conviction of one count each of
persons not to possess firearms, and firearms not to be carried without a
license.2 Appellant challenges the trial court’s denial of his motion to
suppress evidence. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
We have amended the caption to reflect that, although Appellant purports
to appeal from the order denying his suppression motion, the appeal
properly lies from his judgment of sentence. See Commonwealth v.
Pratt, 930 A.2d 561, 562 n.1 (Pa. Super. 2007), appeal denied, 946 A.2d
686 (Pa. 2008).
2
18 Pa.C.S.A. §§ 6105(c)(2) and 6106(a)(1), respectively.
J-A32036-16
We take the relevant facts and procedural history of this case from our
independent review of the certified record. In the early morning hours of
January 22, 2015, Corporal Jonathan Shave of the Coatesville Police
Department received a dispatch to the scene of a robbery. The suspects had
fled, and the victim
described them as being young black males in their teens
or early twenties. The suspect that came in the house and took
the wallet he described as light skinned, shorter and stocky. The
other suspect he described as dark skinned and taller. . . .
. . . [The victim] stated that one of the suspects implied that he
had a gun and he did observe a dark handle in his pocket, but he
could not tell if it was a gun or not. . . .
(N.T. Suppression, 9/23/15, at 13).
On January 23, 2015, at about 5:25 p.m., while off-duty, Cpl. Shave
went to a Walgreens store located in a high crime area, approximately ten
blocks away from where the robbery occurred. Cpl. Shave observed two
men who generally matched the physical description of the robbery suspects
walk into the store together, specifically, Mr. Ernay,3 a “[l]ight-skinned black
male, small in stature,” and Appellant, who “was darker skinned than his
light-skinned male companion and he was taller.” (Id. at 10; see id. at 19).
Cpl. Shave
observed that [Mr. Ernay] was carrying a firearm. The
firearm was on his right side. [Cpl. Shave] observed the
firearm, the slide and the barrel to be tucked into his jeans
____________________________________________
3
Mr. Ernay’s first name is not apparent from the record.
-2-
J-A32036-16
pocket with the handle of the firearm sticking out. The weapon
was not holstered in any way, shape or form.
(Id. at 7).
Cpl. Shave, who has had extensive training in the area of firearm
safety, had never seen anyone carry a firearm in this dangerous manner.
(See id. at 7-8, 11, 19). This “stood out completely [to him]” and he
thought: “[t]hese are the two guys from that robbery because of that
firearm, the way it was positioned in his pocket.” (Id. at 19).
Cpl. Shave exited the store and notified shift supervisor Cpl. Jeffrey
Ingemie that “[he] had observed [two] subjects [who] appeared to have
matched the description of a robbery, specifically one with a firearm tucked
in his pocket, and [he] asked [Cpl. Ingemie] to respond to assist.” (Id. at
14; see id. at 27, 36, 45). Multiple officers responded to the Walgreens,
including Cpls. Ingemie and Sean Dowds. Appellant remained in the store,
and Mr. Ernay returned to his vehicle. Cpl. Ingemie investigated Mr. Ernay,
and determined that he was legally carrying the firearm. While Cpl. Ingemie
was investigating Mr. Ernay, he noticed that Appellant was pacing inside of
the store near the cash registers and staring at the officers, without
purchasing anything. Cpl. Ingemie directed Cpl. Dowds to speak to
Appellant.
Cpl. Dowds entered the store accompanied by Police Officer Chris
McCarthy, and they approached Appellant. Cpl. Dowds told Appellant that
he would like to speak to him and requested identification. Appellant
produced his license, and Officer McCarthy returned to his patrol vehicle to
-3-
J-A32036-16
run it. Cpl. Dowds asked Appellant to step outside of the store with him,
Appellant assented, and the two men walked outside of the store towards
the patrol vehicle. Cpl. Dowds asked Appellant if he could pat him down for
safety, and Appellant did not respond. Cpl. Dowds proceeded to pat
Appellant down, checking for weapons, “for [his] safety,” and because “in
[his] training and experience, where there’s one gun, there possibly could be
two guns.” (Id. at 45; see id. at 43-46). The pat down revealed a loaded
handgun in Appellant’s waistband. Cpl. Dowds detained Appellant, and
police determined that he is a prior convicted felon, and is ineligible to have
a license to carry a firearm.
Prior to trial, Appellant filed a motion to suppress evidence, which the
trial court denied on October 29, 2015, following a hearing. The trial court
found Appellant guilty of the above-mentioned offenses after a stipulated
facts trial on December 18, 2015. On March 28, 2016, the trial court
sentenced Appellant to a term of not less than three and a half nor more
than eight years’ incarceration, followed by three years of probation. This
timely appeal followed.4
Appellant raises the following issues for our review:
____________________________________________
4
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 17, 2016. The trial
court issued an opinion on May 23, 2016, in which it adopted its opinion
entered on October 29, 2015, for the reasons for its decision. See Pa.R.A.P.
1925.
-4-
J-A32036-16
A. Did the [t]rial [c]ourt commit legal error in finding that the
Corporal Shawn Dowds had reasonable suspicion to stop and
frisk the Appellant?
B. Did the [t]rial [c]ourt commit legal error in denying the
Appellant’s pre-trial motion to suppress the evidence obtained
during this encounter?
(Appellant’s Brief, at 2).5
On appeal, Appellant argues the trial court erred in finding that Cpl.
Dowds was justified in conducting the investigatory detention because the
officer lacked the requisite reasonable suspicion. (See Appellant’s Brief, at
7-16). He contends that the court’s focus should have been on Cpl. Dowds’
knowledge at the time of the stop, and that the officer did not have
reasonable suspicion that Appellant was involved in criminal activity. (See
id. at 10). Cpl. Dowds had not personally observed Appellant’s pacing or
failure to purchase items in the store, he had no information as to whether
Appellant was armed, and the only knowledge he had was that Appellant
might have matched the general description of the robbery suspect. (See
id. at 10-11, 15). Appellant further maintains that because Cpl. Dowds
illegally detained and searched him, the court should have suppressed the
firearm found during the pat-down. (See id. at 16). This issue does not
merit relief.
____________________________________________
5
Although framed as two separate issues, the claims Appellant raises on
appeal are interrelated and challenge the trial court’s denial of his motion to
suppress evidence. We will therefore address the claims together.
-5-
J-A32036-16
Our standard of review in addressing a challenge to the
denial of a suppression motion is
limited to determining whether the suppression
court’s factual findings are supported by the record
and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth
prevailed before the suppression court, we may
consider only the evidence of the Commonwealth
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 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.
The suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only
the evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.
It is well-established that there are three categories of
interaction between citizens and police officers. . . .
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicion, but carries no official compulsion
to stop or to respond. The second, an “investigative
detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a
period of detention, but does not involve such
coercive conditions as to constitute the functional
equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Ranson, 103 A.3d 73, 76–77 (Pa. Super. 2014), appeal
denied, 117 A.3d 296 (Pa. 2015) (citations omitted).
-6-
J-A32036-16
Instantly, Cpl. Dowds’ action in patting Appellant down for weapons
was a Terry6 frisk.
A Terry frisk is a type of investigative detention requiring
reasonable suspicion that criminal activity is afoot and that the
individual whose suspicious behavior [an officer] is investigating
at close range is armed and presently dangerous to the officer or
to others. The purpose of a Terry frisk is not to discover
evidence of a crime, but to protect the police officer conducting
the investigation.
The reasonable suspicion necessary to conduct a Terry
frisk and, in fact, all investigative detentions
is a less demanding standard than probable cause
not only in the sense that reasonable suspicion can
be established with information that is different in
quantity or content than that required to establish
probable cause, but also in the sense that reasonable
suspicion can arise from information that is less
reliable than that required to show probable cause.
The determination of whether an officer had reasonable
suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be
considered in light of the totality of the circumstances. In
assessing the totality of the circumstances, a court must give
weight to the inferences that a police officer may draw through
training and experience. Also, the totality of the circumstances
test does not limit our inquiry to an examination of only those
facts that clearly indicate criminal conduct. Rather, even a
combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
____________________________________________
6
Terry v. Ohio, 392 U.S. 1 (1968).
-7-
J-A32036-16
Commonwealth v. Davis, 102 A.3d 996, 999–1000 (Pa. Super. 2014),
appeal denied, 113 A.3d 278 (Pa. 2015) (citations and quotation marks
omitted).
In addition,
The officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
the safety of others was in danger. The existence of reasonable
suspicion to frisk an individual must be judged in light of the
totality of the circumstances confronting the police officer.
Commonwealth v. Cooper, 994 A.2d 589, 592–93 (Pa. Super. 2010),
appeal denied, 13 A.3d 474 (Pa. 2010) (citation omitted).
“A police officer need not personally observe unusual or suspicious
conduct reasonably leading to the conclusion that criminal activity is afoot
and that a person is armed and dangerous[,]” and may rely upon
information provided by other officers. Commonwealth v. Jackson, 519
A.2d 427, 430 (Pa. Super. 1986) (citation omitted). “Moreover, whether the
defendant was located in a high crime area similarly supports the existence
of reasonable suspicion.” Commonwealth v. Foglia, 979 A.2d 357, 361
(Pa. Super. 2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010)
(citation omitted).
Here, while at a drugstore located in a high crime area in close
proximity to where a robbery had occurred the day before, Cpl. Shave
observed two men who matched the general description of the robbery
suspects enter the store together. (See N.T. Suppression, at 7, 9-10, 19).
-8-
J-A32036-16
Importantly, one of the men was carrying a firearm in the exact same
dangerous and highly unusual manner as one of the robbery suspects. (See
id. at 7-8, 13, 19). Because of his concern for safety, Cpl. Shave requested
police assistance, and relayed to the other officers his observations. (See
id. at 8, 13-14, 27, 36, 45). Upon police arrival at the drugstore, Appellant
paced and stared at the officers, remaining in the store without purchasing
anything, while police investigated his companion. (See id. at 29-31). Cpl.
Dowds then engaged Appellant and conducted a pat-down search to
determine whether he was carrying a weapon, “for [his] safety,” and
because “in his training and experience, where there’s one gun, there
possibly could be two guns.” (Id. at 45; see id. at 43-44, 46).
Based on the foregoing, in light of the totality of the circumstances,
and giving weight to the inferences Cpl. Dowds drew based on his training
and experience, we conclude that the investigatory detention was supported
by reasonable suspicion of criminal activity, and Cpl. Dowds’ justifiable belief
in the need to protect officer safety. See Davis, supra at 999–1000;
Cooper, supra at 592–93. Thus, the trial court properly denied Appellant’s
motion to suppress evidence. See Ranson, supra at 76–77. Accordingly,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
-9-
J-A32036-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2017
- 10 -