Com. v. Mason, J.

J. A29002/15
2015 Pa. Super. 268
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH MASON, : No. 1528 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, April 7, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0009052-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2015
Joseph Mason appeals from the April 7, 2014 judgment of sentence
following his conviction of violations of the Uniform Firearms Act: persons
not to possess firearms, carrying a firearm without a license, and possession
or distribution of marijuana or hashish.1 We affirm.
The trial court provided the following relevant facts:
Briefly, the evidence presented at trial
established that in the evening hours of May 26,
2013, Pittsburgh Police Officer Brendan Flicker and
his partner Officer Opsenica, were on a routine foot
patrol near the intersection of Frankstown Avenue
and Putnam Street in the Larimer section of the City
of Pittsburgh, an area known for open-air drug sales.
The two officers passed a red Chrysler with an Ohio
license plate and observed the butt of a black and
1
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 35 P.S. § 780-113(a)(31),
respectively.
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silver semi-automatic firearm through the car
window. The officers returned to their vehicle and
waited for the car to leave. Shortly thereafter,
Officer Dustin Rummel radioed that he was traveling
behind the vehicle, which had left its parking space
without being seen by Officers Flicker and Opsenica.
Officer Rummel followed the red Chrysler for a time,
then the pursuit was assumed by Officer Gregory
Livesey, who observed the vehicle attempt to park
against the flow of traffic without a turn signal and
initiated a traffic stop. When Officer Livesey
activated his patrol vehicle lights, the Defendant
jumped out of the vehicle and ran. It was noted that
the Defendant’s hands were by the center of his
waistband while he was running. Officer Livesey and
other officers followed, and the Defendant ducked
between two houses. Immediately a shot was heard
and the Defendant emerged saying “You shot me”.
Shortly thereafter, a thermal imaging camera was
used to locate the weapon, which was still hot from
having recently been fired. A gunshot residue test
performed on the Defendant’s clothing revealed
particles characteristic of gunshot residue on his left
cuff.
Trial court opinion, 1/7/15 at 2. Appellant was arrested and charged with
persons not to possess firearms, carrying a firearm without a license,
recklessly endangering another person, escape, and possession or
distribution of marijuana or hashish. On November 12, 2013, appellant filed
a motion to suppress evidence with the trial court in which he sought to
prevent the Commonwealth from introducing any evidence seized as a result
of the traffic stop of the red Chrysler. (Docket #7.) The trial court held a
hearing on March 26, 2014, and appellant’s motion was denied. At the
conclusion of a non-jury trial on April 7, 2014, appellant was convicted of
persons not to possess firearms, carrying a firearm without a license, and
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possession or distribution of marijuana or hashish. He was acquitted of
recklessly endangering another person and escape.2 Immediately following
the trial, appellant was sentenced to not less than two nor more than ten
years’ imprisonment.
On April 17, 2014, appellant filed a post-sentence motion which was
denied by the trial court by operation of law on August 20, 2014. Appellant
filed a notice of appeal on September 19, 2014. On September 26, 2014,
the trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
with the trial court’s order on October 16, 2014, and the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
Whether the trial court erred in not suppressing the
gun and drug evidence when the testimony of the
police officers manifestly failed to establish
reasonable suspicion or probable cause to believe
that the red Chrysler, in which Mr. Mason was a
passenger, had committed a violation of the Motor
Vehicle Code, or reasonable suspicion to believe that
Mr. Mason was involved in criminal activity?
Appellant’s brief at 4.
In cases involving a review of the denial of a defendant’s suppression
motion, we are subject to the following standard of review:
2
18 Pa.C.S.A. §§2705 and 5121(a), respectively. Appellant was also
charged with tamper with/fabricate physical evidence, which was not held
over for court at the preliminary hearing. 18 Pa.C.S.A. § 49810(1); notes of
testimony, 7/1/13 at 64.
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[An appellate court’s] 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, [the appellate court] is bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous. Where . . . the appeal of
the determination of the suppression court turns on
allegations of legal error, 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 [] plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015),
quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
citations and quotation marks omitted).
In the instant appeal, appellant alleges that the trial court erred in
denying his motion to suppress the gun and drug evidence because the
“testimony of the police officers manifestly failed to establish reasonable
suspicion or probable cause to believe that the red Chrysler, in which
[appellant] was a passenger, had committed a violation of the Motor Vehicle
Code.” (Appellant’s brief at 17.) The trial court found, as a matter of fact,
that, “the police were going to stop this car because they saw a gun and
they followed it.” (Notes of testimony, 3/26/14 at 39-40.) Regardless of
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whether the police observed a violation of Motor Vehicle Code, they still had
reasonable suspicion to conduct a valid stop of the red Chrysler.
The Fourth Amendment of the Federal Constitution
provides, “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated . . .” U.S. Const. amend. IV. Likewise,
Article I, Section 8 of the Pennsylvania Constitution
states, “[t]he people shall be secure in their persons,
houses, papers and possessions from unreasonable
searches and seizures . . .” Pa. Const. Art. I, § 8.
Under Pennsylvania law, there are three levels of
encounter that aid courts in conducting search and
seizure analyses.
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 respond. The
second, an “investigative detention”
must be supported by reasonable
suspicion; it subjects a suspect to a stop
and period of detention, but does not
involve such coercive conditions as to
constitute the functional equivalent of
arrest. Finally, an arrest or “custodial
detention” must be supported by
probable cause.
Commonwealth v. Williams, 73 A.3d 609, 613
(Pa.Super. 2013) (citation omitted), appeal denied,
87 A.3d 320 (Pa. 2014).
....
“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.”
Navarette v. California, 134 S. Ct. 1683, 1687
(2014). It is axiomatic that to establish reasonable
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suspicion, an officer “must be able to articulate
something more than an inchoate and
unparticularized suspicion or hunch.” United States
v. Sokolow, 490 U.S. 1, 7 (1989) (internal
quotation marks and citations omitted). Unlike the
other amendments pertaining to criminal
proceedings, the Fourth Amendment is unique as it
has standards built into its text, i.e. reasonableness
and probable cause. See generally U.S. Const.
amend. IV. However, as the Supreme Court long
recognized, Terry v. Ohio, 392 U.S. 1 (1968) is an
exception to the textual standard of probable cause.
Florida v. Royer, 460 U.S. 491, 498 (1983). A
suppression court is required to “take[] into account
the totality of the circumstances—the whole picture.”
Navarette, supra (internal quotation marks and
citation omitted). When conducting a Terry
analysis, it is incumbent on the suppression court to
inquire, based on all of the circumstances known to
the officer ex ante, whether an objective basis for
the seizure was present. Adams v. Williams, 407
U.S. 143, 146 (1972). In addition, an officer may
conduct a limited search, i.e. a pat-down of the
person stopped, if the officer possesses reasonable
suspicion that the person stopped may be armed and
dangerous. United States v. Place, 462 U.S. 696,
702 (1972).
Commonwealth v. Carter, 105 A.3d 765, 768-769 (Pa.Super. 2014)
(en banc), appeal denied, 117 A.3d 295 (Pa. 2015) (citations formatted).
This court has previously stated that, “possession of a concealed
firearm 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.” Commonwealth v. Robinson, 600 A.2d 957, 959
(Pa.Super. 1991), citing Commonwealth v. Mears, 424 A.2d 533
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(Pa.Super. 1981), and Commonwealth v. Lagana, 537 A.2d 1351 (Pa.
1988); see also Commonwealth v. Stevenson, 894 A.2d 759, 772
(Pa.Super. 2006).
We agree with the Commonwealth that the facts in Robinson are
analogous to the case sub judice. In Robinson, the defendant was
personally observed by a police officer bending over into a van with a
firearm on his waistband. Robinson, 600 A.2d at 959. After making this
observation, the officer drove down the street, discussed the situation with
her partner, and then stopped Robinson’s van. Id. at 959. In Robinson,
there was no indication that the defendant violated the Motor Vehicle Code
before being stopped by the police.
Appellant argues that both Robinson and Stevenson are
distinguishable from the instant case because the defendants in those cases
were observed by police officers with firearms on their person, while the gun
in this case was originally observed in an unoccupied car. The statute at
question, 18 Pa.C.S.A. § 6106, indicates that the cases are
indistinguishable:
any person who carries a firearm in any vehicle
or any person who carries a firearm concealed on
or about his person, except in his place of abode
or fixed place of business, without a valid and
lawfully issued license under this chapter commits a
felony of the third degree. [Emphasis added.]
The statute does not enumerate any differences between an individual
who is concealing a firearm on his person and one who is carrying a firearm
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in his vehicle. The language of the statute, coupled with this court’s decision
in Robinson, establishes the reasonable suspicion that was required for the
police to stop the red Chrysler, regardless of whether a violation of the Motor
Vehicle Code was observed. In the instant case, the police are able to
“articulate something more than an inchoate and unparticularized suspicion
or hunch,” as contemplated by the United States Supreme Court in
Sokolow. The officers personally observed the butt end of a firearm in an
unoccupied vehicle parked in an area that, according to Officer Flicker’s
testimony, was known for open-air drug transactions and homicides. (Notes
of testimony, 3/26/14 at 4.) Much like the officers in Robinson, the officers
in the present case had a reasonable suspicion that appellant may be
dangerous; and by stopping the red Chrysler, the officers were properly
conducting an investigatory detention.
We find that by denying appellant’s motion to suppress evidence, the
trial court did not err. The trial court made the following factual finding on
the record: “I find as a matter of fact [the police] were going to stop the car
because they had seen a gun in plain view in a high crime area.” (Id. at
40.) The record, through the testimony of Officer Flicker, supports this
finding. (See id. at 4.) We further find that the trial court reached the
correct conclusion of law based upon the court’s factual findings. See
Jones, 121 A.3d at 526.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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