Commonwealth v. Ranson

J-A19005-14
2014 Pa. Super. 227
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HERBERT RANSON,
Appellant No. 1331 WDA 2013
Appeal from the Judgment of Sentence July 16, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016897-2012
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
OPINION BY OLSON, J.: FILED OCTOBER 8, 2014
Appellant, Herbert Ranson, appeals from the judgment of sentence of
one to three years’ imprisonment, imposed after he was convicted of
receiving stolen property1, person not to possess firearms2, and firearms not
to be carried without a license3. The sole issue on appeal is whether the
trial court erred in denying Appellant’s motion to suppress. After careful
consideration, we affirm.
Prior to trial, Appellant filed a motion to suppress evidence.
Specifically, Appellant sought to suppress a firearm that was found on his
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1
18 Pa.C.S.A. § 3925(a).
2
18 Pa.C.S.A. § 6105(a)(1).
3
18 Pa.C.S.A. § 6106(a)(1).
* Former Justice specially assigned to the Superior Court.
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person following Appellant’s stop and seizure by three police officers. A
hearing was held on Appellant’s pretrial suppression motion during which the
following facts were adduced.
Detective Tanye Curry testified that he had been a police officer for 18
years and an officer for the City of Pittsburgh for approximately seven years.
N.T., 5/16/13, at 3. On December 15, 2012, Detective Curry was working
an approved off-duty detail for the City of Pittsburgh at the Serenity Club, an
after-hours club located in Zone 5 of the City of Pittsburgh. Id. at 4-5.
Detective Curry described the location of the club as a high-crime area. Id.
at 5. According to Detective Curry, security was needed at the Serenity Club
as there were prior incidents at the club, including fights, shootings and
homicides. Id. at 5, 13. The patrons who went to the club included parole
and probation violators. Id. at 13. Detective Curry worked the security
detail at the Serenity Club for almost four years. Id. On the night in
question, the club was letting out at approximately 3:30 a.m. Id. at 14.
Detective Curry and two other officers assigned to the security detail stood
in different areas around the perimeter of the club “to make sure nothing
occur[ed].” Id. at 6. At that time, “a patron of the club stopped [Detective
Curry] and told [him] there was a male on the corner with a firearm. The
patron went on to give [Detective Curry] a description and said this person
was wearing a black hoodie, black jeans, and had a long beard. The patron
actually pointed the person out to [Detective Curry] on the corner.” Id.
Although Detective Curry did not know the informant’s name, the Detective
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saw him on a regular basis as the informant was at the club “every single
weekend.” Id. at 15. Appellant was the man to whom the informant
pointed and, at the time he was pointed out to Detective Curry, Appellant
was approximately 75 feet away from where Detective Curry stood. Id. at
7. Appellant was leaning against the corner of a building facing the front
entrance of the club. Id. at 18. In light of this information, Detective Curry
approached the other two officers and told him what the informant had said.
Id. at 16. The three officers, all dressed in full uniform, began to approach
Appellant from the side, at which time Appellant put his hands in his hoodie
pocket and started to walk away. Id. at 9, 18-19, 20.4 That is when
Appellant was given the command to stop. Id. at 19. Although the officers
were all yelling to Appellant to “stop”, Appellant looked back at the officers
and continued to walk away. Id. at 19-20. At that point, Detective Curry
pulled his firearm out and held it at the side of his leg. Id. at 9.5 Appellant
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4
The record on this fact is contradictory. On direct examination, Detective
Curry testified that as the officers first approached Appellant, “he was facing
toward us. As we started walking toward him, getting closer to him, he
turned and began to walk away from us.” N.T., 5/16/13, at 9. It was on
cross-examination that Detective Curry said that the officers approached
Appellant from the side as he was staring at the club.
5
The evidence is unclear as to whether the officers had their weapons
pointed at Appellant. Detective Curry testified that he had his weapon un-
holstered and out by his side but it was not pointed at Appellant. N.T.,
5/16/13, at 24, 25. Detective Fred Wright, one of the other officers on duty
that night, testified that he and Officer Kenny, the third officer, had their
guns “drawn” as they approached Appellant. Id. at 28.
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walked approximately 50 feet with the officers walking behind him telling
him to stop. At this point, Appellant finally stopped and turned toward the
officers. Id. at 21-22. Detective Curry ordered Appellant to remove his
hands from the pocket of his hoodie sweatshirt at which time Detective
Curry could see the imprint of a gun through the black sweatshirt. Id. at
22. Appellant was searched and an operational, .45 caliber Taurus firearm
was found in the front pocket of his hoodie sweatshirt.
Following the hearing, the trial court denied the suppression motion.
Appellant proceeded to a non-jury trial on July 16, 2013. At the conclusion
of the trial, the trial court found him guilty of the above-referenced crimes.
He was sentenced on that same day. Appellant filed a timely notice of
appeal, as well as a timely concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed its opinion in
accordance with Pa.R.A.P. 1925(a).
Appellant presents the following question for our review:
Did the trial court err in denying [Appellant’s] motion to
suppress where police lacked reasonable suspicion to believe
[Appellant] was engaged in criminal conduct at the time that
they stopped him?
Appellant’s brief at 4.
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
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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.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010), cert. denied, 131
S. Ct. 110 (U.S. 2010) (citations, quotations and ellipses omitted).
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. See In re L.J., 79 A.3d 1073, 1083-1087 (Pa. 2013).
It is well-established that there are three categories of interaction
between citizens and police officers. As our Supreme Court has clearly
articulated:
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. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012),
appeal denied, 48 A.3d 1247 (Pa. 2012), quoting Commonwealth v. Ellis,
662 A.2d 1043, 1047 (Pa. 1995) (citations omitted). Under the facts of this
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case, we find that Appellant was subjected to an investigative detention at
the time that the three officers commanded Appellant to stop. Our Supreme
Court has held that where “a citizen approached by a police officer is ordered
to stop … obviously a ‘stop’ occurs.” Commonwealth v. Jones, 378 A.2d
835, 839 (Pa. 1977). Moreover, as pursuit by police constitutes a seizure
under the law of this Commonwealth, a person may be seized even though
he is moving away from the police. See Commonwealth v. Matos, 672
A.2d 769 (Pa. 1996). Thus, the issue is whether the officers possessed
reasonable suspicion that Appellant was engaged in criminal conduct when
they issued their command. We conclude that they did, therefore,
Appellant’s detention was lawful.
In denying the suppression motion, the trial court looked to this
Court’s decision in Commonwealth v. Foglia, 979 A.2d 357 (Pa. Super.
2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010) as guidance as to
whether the investigative detention of Appellant was proper. In Foglia, this
Court set forth the standard that must be applied in determining whether an
investigative detention of an individual is constitutionally sound:
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. This standard, less
stringent than probable cause, is commonly known as
reasonable suspicion. In order to determine whether the police
officer had reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, we must give due weight to the specific
reasonable inferences the police officer is entitled to draw from
the facts in light of his experience. Also, the totality of the
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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.
Id. at 360 (citations and internal quotes omitted). In Foglia, two police
officers in uniform were on patrol in a high-crime area of Philadelphia in a
marked cruiser. The officers received a radio broadcast emanating from an
anonymous source that there was a man standing on a specified corner
dressed in black clothes who was carrying a firearm. In less than a minute
and a half, the officers arrived at the designated corner and saw two males,
one of whom was the appellant who was dressed entirely in black. In order
to avoid detection, the officers entered the street with their headlights off.
When the appellant and his companion saw the officers, they began to walk
away from the cruiser. One of the officers watched the appellant who looked
back several times but kept walking in the opposite direction. The officers
stopped their vehicle and exited at which time the appellant grabbed around
his waist area and sat on some steps behind two females. At that point, one
of the officers ordered the appellant to stand, informed him that he was
investigating a male with a gun that fit the appellant’s description, and
immediately patted the appellant down at which time he found a gun tucked
into the appellant’s waistband. The appellant was arrested for various gun
offenses. The appellant filed a motion to suppress, asserting that the
firearm was seized following an illegal police detention. The suppression
court denied the motion and this Court affirmed the ruling. In considering
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the totality of the circumstances, this Court noted that a seventeen-year
veteran of the police force was patrolling in an area that had a high volume
of drugs and weapons. This officer received an anonymous tip that a man
dressed all in black was at a specified location and he possessed a gun.
Upon immediately proceeding to that location, the officers saw two men, one
of whom was dressed all in black. That man engaged in evasive behavior by
continually looking back at police and walking away from them. He touched
his waistband (where individuals frequently conceal weapons according to
the officer). Based upon all of these circumstances considered in their
totality, this Court determined that the investigative detention and
subsequent pat-down of the appellant was constitutionally sound and,
therefore, the suppression court acted properly in denying the appellant’s
suppression motion.
Similar to the facts in Foglia, Detective Curry’s decision to approach
and investigate Appellant was prompted by a tip. However, unlike the tip in
Foglia which was received over the police radio and completely anonymous,
Detective Curry received his information in person from an individual who
frequented the Serenity Club on a weekly basis and whom Detective Curry
saw regularly. We acknowledge that Detective Curry did not know the
tipster’s name; however, that fact does not make the tip purely anonymous
and one that lacked any indicia of reliability.
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“In analyzing an anonymous tip, we must determine whether under
‘the totality of the circumstances’ the informant’s tip established the
necessary reasonable suspicion that criminal activity was afoot.”
Commonwealth v. Martin, 705 A.2d 887, 892 (Pa. Super. 1997), appeal
denied, 725 A.2d 1219 (Pa. 1998), quoting Alabama v. White, 496 U.S.
325 (1990). “[Both] quantity and quality of information are considered
when assessing the totality of the circumstances. If information has a low
degree of reliability, then more information is required to establish
reasonable suspicion.” Commonwealth v. Wimbush, 750 A.2d 807, 811
(Pa. 2000).
Appellant argues that the tipster in this case was purely anonymous
and, therefore, his tip could not be used as a basis to establish reasonable
suspicion. Appellant’s brief at 14-17. In support of this argument, Appellant
cites to several cases. However, the facts of the cases cited by Appellant
are clearly distinguishable from the facts in the case sub judice. In
Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997), the police
received an anonymous telephone call that a black male wearing a blue cap,
black jeans and a gold or brownish coat at a particular corner was carrying a
gun. When the officer arrived at the location, he saw the appellant, and
based solely on the tip and the fact that the appellant met the general
description given by the tipster, the officer stopped and frisked the appellant
at which time a gun was found in his waistband. In Commonwealth v.
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Jackson, 698 A.2d 571 (Pa. 1997), a police officer received a police radio
report of a man in a green jacket carrying a gun. Other than the jacket
description and the man’s location, no additional details were provided. The
report was based on an anonymous telephone call. When the officer arrived
at the location, he saw a number of individuals but only the appellant was
wearing a green jacket. The officer exited his vehicle and immediately
searched the appellant. During the search, no weapon was found, but a
small box containing cocaine fell to the ground. Finally, in Commonwealth
v. Hayward, 756 A.2d 23 (Pa. Super. 2000), an officer was on foot patrol
when an unidentified passerby told him that there was a group of six to
eight males in the park and one of the males, who was “tall”, was
brandishing a gun. No other descriptive identification was given regarding
the man who allegedly had the gun. The officer said that the passerby did
not identify himself and the officer had never seen him before. It took the
officer ten minutes to arrive at the park at which time he saw a group of
individuals, including the appellant. The appellant was approximately 6’1” to
6’2” although there were a couple of other individuals in the group who were
very close to the appellant’s height. The group of individuals were ordered
to line-up on the sidewalk at which time they were all frisked. The frisk
yielded a gun tucked in the appellant’s waistband.
In each of these cases, the searches were deemed unconstitutional
because only general and vague tips were offered to establish reasonable
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suspicion. In Hawkins and Jackson, the tips were from anonymous
telephone callers and only broad, general descriptions of persons and
locations were given. Although the tip in Hayward was made in person, it
was a vague description of a “tall” male made by a person that the officer
had never seen before. In this case, Detective Curry received his tip in
person from an individual he saw on a regular basis and who went to the
after-hours club weekly. The description of the person was not vague – in
fact, the tipster not only described Appellant, he pointed him out to the
detective. Taken together, the facts show that Detective Curry, a veteran
officer, had an opportunity to assess: (1) the demeanor of the tipster; (2)
the basis of the tipster’s knowledge; and, (3) the tipster’s present ability to
perceive Appellant. These facts give additional credence to the tipster’s
information.
The facts of this case are more akin to the situation in
Commonwealth v. Williams, 980 A.2d 667 (Pa. Super. 2009), appeal
denied, 990 A.2d 730 (Pa. 2010). In Williams, Officer Sean McGinnis was
on routine patrol when he received a radio call advising of a robbery in
progress at a particular street corner. Arriving at the specified location,
Officer McGinnis saw the appellant walking up the street with two female
police officers walking behind him trying to catch up. Officer McGinnis also
encountered “a Hispanic male pointing up to the [a]ppellant yelling, ‘He’s got
a gun.’” Id. at 669. The appellant turned the corner at which time Officer
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McGinnis pulled his patrol car about 15 feet in front of the appellant while
the two female officers gave the appellant verbal commands to stop. The
appellant initially complied with the verbal commands by placing his hands
against an adjacent wall, but he then ran. Pursuing on foot, Officer McGinnis
saw the appellant clutch the right side of his waist. Several blocks away, the
appellant was blocked off by another patrol car at which time the appellant
pulled a gun from his waistband and tossed it away. The suppression court
denied the appellant’s motion to suppress the gun and the appellant was
convicted of various gun offenses. On appeal, the appellant argued that the
stop was illegal as Officer McGinnis did not have the requisite level of
suspicion needed to support an investigative detention. In affirming the
suppression court’s denial of suppression, this Court stated as follows:
In order to justify an investigative detention, the police
must have reasonable suspicion that criminal activity is
afoot. Reasonable suspicion must be based on specific and
articulable facts, and it must be assessed based on the
totality of circumstances viewed through the eyes of a
trained police officer. Here, Officer McGinnis had just
received a radio call advising of a robbery in progress,
observed [a]ppellant in the immediate vicinity of the
reported robbery attempting to avoid two female officers
who were approaching him on foot, and encountered a
witness who was pointing at [a]ppellant yelling, “He has
got a gun.”
Appellant argues that the witness’ statement, “He has got
a gun” is the equivalent of an uncorroborated, anonymous
tip, and is insufficient to establish reasonable suspicion
justifying an investigative stop. We disagree. Each of the
cases cited by [a]ppellant on this point involve anonymous
phone calls to the police regarding criminal activity. The
situation here, however, is distinguishable in that
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the tip was made in person, giving Officer McGinnis
an opportunity to observe the witness’ demeanor
and assess his credibility in light of his past
experience with investigating crimes. Such a tip
must be given more weight than a mere anonymous
phone call because a person who knowingly gives false
information to any law enforcement officer with intent to
implicate another may be held criminally liable.
Id. at 671-672. (emphasis supplied) (internal citations, quotation marks,
ellipses and footnote omitted).
The tip in the case sub judice is even more reliable than the tip in
Williams, which this Court deemed sufficient to support reasonable
suspicion. In Williams, the only evidence was that an Hispanic male told
Officer McGinnis that the appellant had a gun. There was no further
description of the tipster or any indication that the officer had ever seen him
before. In this case, however, Detective Curry testified that he had seen the
tipster on a regular basis as he was a patron at the club every weekend.
Like in Williams, Detective Curry had the opportunity to observe the
tipster’s demeanor and assess his credibility in light of his 18 years of
experience as a police officer. Thus, the tip given to Detective Curry by a
regular patron of the Serenity Club was a legitimate factor upon which the
officer could rely in determining that there was reasonable suspicion to stop
Appellant.
Moreover, there were additional facts that must be considered in
viewing the totality of the circumstances from the eyes of the officers in this
case. The Serenity Club was in Zone 5 of Pittsburgh – an area known as a
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high-crime area. More importantly, the club itself was known to be
frequented by parole and probation violators and had been the site of prior
fights, shootings and homicides. Thus, there was a credible basis from
which the officers could infer that the people in and near the club had
weapons. Detective Curry and the other officers were specifically assigned
to the task of patrolling the area around the Serenity Club to make sure
things remained calm and peaceful. The events in this case happened at
3:30 a.m., when the after-hours club was closing and the people were
leaving. Additionally, as the officers in full uniform started to approach
Appellant from the side (but before the commands to stop were issued),
Appellant started to walk away. It is reasonable to infer that Appellant saw
the officers approaching and turned and walked away in an effort to evade
them. Although each of these factors, standing alone, may not be sufficient
to establish reasonable suspicion, taken in their totality, they are sufficient
to have reasonably led the officers to believe that criminal activity was afoot
so as to justify the investigative detention of Appellant. See Foglia, 979
A.2d at 361-362 (the anonymous tip, appellant’s attire and location which
matched the information provided by the anonymous tipster, the high-crime
area, and appellant’s evasive behavior of walking away from the police as
they approached were sufficient to support an investigative detention and
subsequent search); see also Commonwealth v. Zhahir, 751 A.2d 1153
(Pa. 2000) (an anonymous tip that a male wearing a green jacket and blue
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jeans was selling narcotics at a specified street corner, appellant’s attire and
location matching the information provided by the anonymous tip,
appellant’s action of walking into a restaurant upon seeing the officers when
officers arrived at the specified location two and one-half hours later,
appellant’s action of throwing something on the floor of the restaurant and
then later retrieving it, and the fact that this occurred in a high-crime area
were sufficient to support an investigative detention).6
Thus, in considering the totality of the facts and circumstances, and
after applying our standard of review, we conclude that the trial court did
not err in denying Appellant’s suppression motion.
Judgment of sentence affirmed.
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6
In denying the suppression motion, the trial court not only relied on the
facts of the high-crime status of the neighborhood and the club, and
Detective Curry’s familiarity with the tipster, but it also relied on the
evidence of Appellant’s evasiveness in refusing to stop after being ordered to
do so and “his unusual hand movements in refusing to remove his hand
from his pocket where the gun could be seen, and then returning his hand to
the pocket with the gun.” Trial Court Opinion, 1/14/14 at 3-4. We do not
believe that that evidence should have been considered in determining
whether the officers had reasonable suspicion to detain Appellant. As noted,
supra, the officers effectively detained Appellant at the moment that they
commanded him to stop. Thus, only the factors apparent to the officers at
that time can be considered in determining whether they had reasonable
suspicion to believe that criminal activity was afoot. As Appellant’s action of
continuing to walk away from the officers after being told to stop, and his
hand movements with respect to the gun, occurred after Appellant was
commanded to stop, that evidence cannot serve as a basis to support the
denial of the suppression motion. However, as there were sufficient factors
to support an investigative detention at the time that Appellant was
commanded to stop, it was harmless error on the part of the trial court to
refer to those additional factors.
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Justice Fitzgerald joins this Opinion.
President Judge Emeritus Bender files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
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