Com. v. Rockeymore, C.

J-S59015-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CUE ROCKEYMORE, :
:
Appellant : No. 2870 EDA 2013
Appeal from the Judgment of Sentence Entered October 9, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0009110-2013.
BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 02, 2014
Appellant, Cue Rockeymore, appeals from the judgment of sentence
entered following his conviction of firearms violations. We affirm.
The trial court summarized the procedural history of this case as
follows:
Appellant, Cue Rockeymore, was found guilty following a
waiver trial on October 9, 2013 of Firearms Not To Be Carried
Without License (18 Pa.C.S.A. § 6106 §§A1) and Carrying
Firearms in Public in Philadelphia (18 Pa.C.S.A. § 6108). Prior to
trial, defense counsel litigated a motion to suppress which was
denied. Commonwealth presented the testimony of Police
Officers Sean McKnight and Thomas Bellon as well as a
certificate of non-licensure and a ballistician’s report. Defense
presented no testimony but did move into evidence a map and
picture of the place of arrest. Appellant was sentenced to a time
in [sic] to twenty-three (23) months of county incarceration
followed by three (3) years reporting probation, concurrent on
each charge.
______________________________
*Retired Senior Judge assigned to the Superior Court.
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Appellant filed a timely notice of appeal on October 11,
2013. This Court entered an Order pursuant to Pa.R.A.P.
1925(b) directing Appellant to file and serve a concise statement
of errors complained of on appeal within twenty-one (21) days.
After granting an extension of time, Appellant filed a 1925(b)
statement on December 20, 2013.
Trial Court Opinion, 1/16/14, at 1. The trial court filed an opinion pursuant
to Pa.R.A.P. 1925(a) on January 16, 2014.
Appellant presents the following issue for our review:
Did not the lower court err when it denied [A]ppellant’s
motion to suppress where two police officers seized the
appellant, who was merely walking down the street, without
reasonable suspicion or probable cause and therefore, their
subsequent recovery of a firearm from him was the fruit of an
illegal seizure?
Appellant’s Brief at 3.
“When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the suppression
court’s factual findings and whether the inferences and legal conclusions
drawn by the suppression court from those findings are appropriate.”
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc).
“Where the Commonwealth prevailed on the suppression motion, we
consider only the evidence of the prosecution and so much of the defense
that remains uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589,
591 (Pa. Super. 2010).
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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. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en
banc). To the extent that the suppression court’s factual findings are
supported by the record, “we are bound by those facts and will only reverse
if the legal conclusions are in error.” Cooper, 994 A.2d at 591. As an
appellate court, it is our duty “to determine if the suppression court properly
applied the law to the facts.” Commonwealth v. Maldonado, 14 A.3d
907, 910 (Pa. Super. 2011) (citation omitted).
Appellant argues that the trial court erred in denying his motion to
suppress the gun that the Officers recovered from him. Appellant’s Brief at
16. Appellant maintains that he was seized when the Officers approached
him, positioning themselves on either side of Appellant, and that the Officers
“did not have reasonable suspicion to seize” Appellant. Id. at 10. Appellant
also contends that the Officers did not have reasonable suspicion justifying
an investigative detention. Id. at 15. As a result, Appellant maintains that
the gun was recovered as a result of an unlawful seizure, and thus should be
suppressed as fruit of the poisonous tree. Id. at 16.
Contacts between the police and citizenry fall within three general
classifications:
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The first [level of interaction] 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. Goldsborough, 31 A.3d 299, 305 (Pa. Super. 2011).
To guide the crucial inquiry as to whether or not a seizure has
been effected, the United States Supreme Court has devised an
objective test entailing a determination of whether, in view of all
surrounding circumstances, a reasonable person would have
believed that he was free to leave. In evaluating the
circumstances, the focus is directed toward whether, by means
of physical force or show of authority, the citizen-subject’s
movement has in some way been restrained. In making this
determination, courts must apply the totality-of-the-
circumstances approach, with no single factor dictating the
ultimate conclusion as to whether a seizure has occurred.
Commonwealth v. Lyles, 54 A.3d 76, 79-80 (Pa. Super. 2012).
An investigative detention must be supported by reasonable suspicion,
which is a less stringent standard than probable cause. Foglia, 979 A.2d at
360. “In order to determine whether the police had reasonable suspicion,
the totality of the circumstances - the whole picture - must be considered.”
Commonwealth v. Simmons, 17 A.3d 399, 403. Given the totality of the
circumstances, “the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped of criminal
activity.” Id. (quoting Unites States v. Cortez, 449 U.S. 411, 417-418
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(1981)). “[W]e must give due weight to the specific reasonable inferences
the police officer is entitled to draw from the facts in light of his experience.”
Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008) (en
banc) (citation and quotation marks omitted). Furthermore:
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.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006)
(citations and internal quotations omitted). Additionally, suspicious behavior
of the suspect may ultimately provide reasonable suspicion that justifies an
investigative detention. Foglia, 979 A.2d at 360-361. We have clarified the
type of observable behavior that would be relevant to this inquiry:
Evasive behavior also is relevant in the reasonable suspicion
mix. [Illinois v.] Wardlow, [528 U.S. 119 (2000)]; accord
Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908
(2000) (“nervous, evasive behavior such as flight is a pertinent
factor in determining reasonable suspicion”). Moreover, whether
the defendant was located in a high crime area similarly supports
the existence of reasonable suspicion. Wardlow, supra.Finally, if a suspect engages in hand movements that police
know, based on their experience, are associated with the
secreting of a weapon, those movements will buttress the
legitimacy of a protective weapons search of the location where
the hand movements occurred. In Interest of O.J., 958 A.2d
561 (Pa. Super. 2008) (en banc ).
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Id. at 361. “Evidence obtained from an unreasonable search or seizure is
inadmissible at trial.” Commonwealth v. Campbell, 862 A.2d 659, 663
(Pa. Super. 2004).
Additionally, based upon the exception to the prohibition of
warrantless searches and seizures carved out by the United States Supreme
Court in Terry v. Ohio, 392 U.S. 1, 30 (1968):
[w]hen an officer is justified in believing that the individual
whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or to others the
officer may conduct a pat down search to determine whether the
person is in fact carrying a weapon. Terry, [392 U.S. at 24].
The purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without
fear of violence. Adams v. Williams, 407 U.S. 143, 146, 92
S.Ct. 1921, 32 L.Ed.2d 612 (1972).
Simmons, 17 A.3d at 403 (internal quotation marks omitted). “To justify a
frisk incident to an investigatory stop, the police need to point to specific
and articulable facts indicating the person they intend to frisk may be
armed and dangerous; otherwise, the talismanic use of the phrase ‘for our
own protection[]’ … becomes meaningless.” Cooper, 994 A.2d at 593(citation and quotation omitted; emphasis in original). We are “guided by
common sense concerns, giving preference to the safety of the officer during
an encounter with a suspect where circumstances indicate that the suspect
may have, or may be reaching for, a weapon.” Commonwealth v. Mack,
953 A.2d 587, 590 (Pa. Super. 2008).
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In the case sub judice, Officer McKnight testified that he and his
partner were driving southbound on 2nd Street in the City of Philadelphia on
the night in question at approximately 12 a.m. N.T., 10/9/13, at 6-7.
Officer McKnight’s attention was drawn to Appellant because he “observed
[Appellant] adjust an object in the center of his waistband and then pin his
right arm against his body and not move his arm, but he continued walking.”
Id. at 8. Officer McKnight explained that the area was well lit and that he
was approximately seven to eight feet from Appellant when he observed
him. Id. at 8. After seeing Appellant grab the object in his waistband, the
officers circled the block in their patrol car. Id. at 8-9. After coming back
around to 2nd Street, Officer McKnight testified that Appellant was still
walking on the sidewalk of 2nd Street. Id. at 9. The officers then parked
and exited the vehicle. Id. As they were exiting the vehicle, Appellant
“froze” on the sidewalk. Id. Neither officer told Appellant to stop nor did
they draw their weapons on Appellant. Id. at 10.
Officer McKnight further testified that after Appellant stopped and
“pretty much as soon as my partner stepped up onto the sidewalk,” Officer
McKnight’s partner yelled “gun.” N.T., 10/9/13, at 10. At that point, the
officers secured Appellant and Officer Bellon recovered a silver revolver
loaded with six live rounds from the center of Appellant’s waistband. Id. at
10-11.
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Officer McKnight also explained that the area of 3200 North 2nd Street
is a “very violent area. High crime, like high narcotics, high gun area,
definitely.” N.T., 10/9/13, at 11. Officer McKnight stated that he had
previously made arrests related to guns or shootings in that area. Id.
Officer McKnight also testified that at the time of the incident, he was in the
process of transporting a prisoner who was a suspect in an unrelated
shooting that had occurred two to three blocks away from where Appellant
was stopped. Id. at 11-12.
Officer Bellon also testified. N.T., 10/9/13, at 23-38. Officer Bellon
testified that on June 29, 2013, at approximately 12:10 a.m., he was on
duty with Officer McKnight and they were in the area of 3200 North 2 nd
Street in Philadelphia. Id. at 24. The Officers had just left the scene of a
nearby shooting and were transporting a suspect from that shooting when
they turned southbound onto 2nd Street and observed a male, identified as
Appellant, walking northbound on 2nd Street. Id. at 25. Officer McKnight
alerted Officer Bellon that Appellant “had reached for his waistband and then
bladed his arm against his waistband.” Id. After circling the block in their
vehicle, the officers parked their car in front of Appellant’s location on the
sidewalk. Id. Officer Bellon exited the vehicle and explained: “[a]s I
approached the sidewalk, [Appellant] froze. He wouldn’t move.” Id. Officer
Bellon testified that upon his exiting the car and approaching Appellant, the
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officer did not say anything to Appellant to cause Appellant to stop. Id. at
25. Officer Bellon provided the following summary of his subsequent
interaction with Appellant:
[A]s I approached [Appellant], I observed a silver firearm
with a wooden handle in his waistband between his blazer and
his orange polo shirt; the same one he’s wearing right now. At
that point I went to secure [Appellant]. He made a reaching
movement towards the weapon. We then secured him against
the wall. I then recovered the firearm, which was a .38 Smith &
Wesson long, with a serial number -- if I may refer to my notes -
- 707471, which was loaded with six live rounds and it was
placed on a Philadelphia property receipt.
Id. Officer Bellon testified that the actions of his stepping onto the sidewalk
and seeing the gun in Appellant’s waistband were simultaneous. Id. at 36.
Officer Bellon explained that after securing the gun, Appellant stated
that he did not have a permit to carry it. N.T., 10/9/13, at 36. Appellant
told the officers that he “had just found the gun in a lot.” Id. Upon the
officers checking NCIC, they confirmed that Appellant did not have a permit
to carry the firearm. Id.
Thus, evidence of record establishes that, given the totality of the
circumstances, the detaining officers had a particularized and objective basis
for suspecting Appellant was involved in criminal activity. Based on their
experience, the officers knew the area in which Appellant was walking to be
a high crime area where shootings were not uncommon. In fact, when
officers observed Appellant, they were transporting an individual who had
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just been involved in an unrelated shooting approximately two-to-three
blocks from where Appellant was walking. Based also on their experience
was their suspicion that Appellant may be carrying a gun, due to Appellant’s
behavior of grabbing an object at his waistband and “blading” his arm
against his side. Accordingly, the officers had reasonable suspicion to stop
Appellant and further investigate whether he possessed a weapon that he
did not have a permit to carry.
Upon stopping their vehicle near Appellant, the officers exited the
vehicle. The testimony reflects that as soon as the officers stopped the
vehicle, Appellant “froze” on the sidewalk of his own accord. Neither officer
directed Appellant to “stop,” drew their weapons, or tried to restrict
Appellant’s movement. The officers were approaching Appellant for
purposes of investigating whether he had a gun. Thus, we cannot agree
with Appellant’s argument that he was “seized” at that point. See Cooper,
994 A.2d at 592 (holding that a seizure does not occur simply because a
police officer approaches an individual with the intention of asking that
individual questions).
Furthermore, Officer Bellon testified that simultaneously with his
stepping onto the sidewalk to approach Appellant, he saw that Appellant
indeed had a gun tucked in his waistband. At that point, Officer Bellon
alerted his partner that Appellant had a gun, and the officers moved in to
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secure Appellant and the gun. The officers were justified in obtaining the
gun during this investigative stop pursuant to the protections of Terry.
Simmons, 17 A.3d at 403.
Furthermore, after the officers had secured the gun, Appellant stated
that he did not have a permit for the weapon. At that point, the officers had
probable cause to arrest Appellant for the VUFA violations.
Thus, contrary to Appellant’s claims, the officers did not unlawfully
stop or seize Appellant. The gun was not unlawfully obtained and need not
be suppressed as fruit of the poisonous tree. Accordingly, the trial court
properly denied Appellant’s motion to suppress the weapon that the officers
retrieved from Appellant.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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