Com. v. Davis, H.

J-S46002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAKEEM DAVIS :
:
Appellant : No. 3398 EDA 2019
Appeal from the Judgment of Sentence Entered September 19, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006941-2018
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 23, 2020
Appellant, Hakeem Davis,1 appeals from the judgment of sentence of
life imprisonment, following his conviction for first-degree murder and related
offenses. Herein, Appellant challenges the trial court’s order denying
suppression of the physical evidence he abandoned while being pursued by
police in a foot chase. Specifically, he alleges that the trial court’s factual
findings—regarding the identifying information known to the arresting officer
at the time Appellant was effectively seized when police ordered him to stop—
are not supported by the record, and that the police did not possess
reasonable suspicion to stop him. After careful review, we affirm.
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1 We observe that, throughout the record, Appellant’s first name is alternately
spelled ‘Hakeem’ and ‘Hykeem.’ Appellant even captioned his notice of appeal
with ‘Hakeem,’ yet he captioned his appellate brief with ‘Hykeem.’ We adopt
the former spelling merely for the sake of consistency herein.
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On August 14, 2018, Philadelphia Police Officer Brittany Kelly and her
partner received a radio call for a shooting reported on North Orianna Street
in Philadelphia. Trial Court Opinion (TCO), 2/10/20, at 2. When Officer Kelly
arrived at that location, she discovered an unconscious male lying on the
ground in a pool of blood. Id. The victim, Matthew Wallace, had been shot
five or six times, causing wounds to his chin, neck, shoulder, chest, elbow,
and leg. Id. at 5. The victim ultimately died from his injuries. Id.
While securing the crime scene, Officer Kelly found a security video from
a local deli and immediately viewed it. Id. at 2. The video showed an
individual approach and shoot the victim with a firearm wielded in his right
hand. Id. at 3. With his left hand, the shooter was holding what appeared to
be a cellphone to his ear immediately before and after he fired the shot. Id.
Based on her observation, Officer Kelly relayed a description of the
shooter over the police radio (“flash description”).2 Id. at 2. Officer Jonathan
Devine heard the flash description, and observed Appellant near a mass transit
stop, about eight blocks from the crime scene. Id. at 2-3. Officer Devine
believed Appellant matched the flash description, approached him, and asked
if he could talk for a minute. Id. at 3. At that point, Appellant ran away, and
Officer Devine pursued him. Id. During the chase, the officer observed
Appellant lose his baseball cap and throw a backpack over a fence before he
was ultimately apprehended. Id. Officer Devine recovered both items, and
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2This flash description is the subject of Appellant’s suppression claim, which
we discuss in greater detail infra.
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discovered a handgun and a red article of clothing in the backpack. Id. A
search of Appellant revealed a cellphone. Id.
During their investigation, police extracted data from Appellant’s
cellphone, revealing that it had been in use at the time of the murder. Id.
Investigators found seven fired cartridge casings from the murder scene. Id.
at 4. The firearm recovered from Appellant’s discarded backpack had two
unfired rounds (one of which had misfired), and a maximum capacity of nine
rounds. Id. An expert testified that the seven rounds had been fired from
the recovered firearm. Id. at 5. Appellant’s pants, and both red shirts
discovered in the backpack, tested positive for gunshot residue. Id. at 4.
DNA evidence on the firearm was inconclusive, but Appellant was one of three
contributors to the DNA found on the red shirt in the backpack. Id. at 4-5.
Finally, it was determined that Appellant did not possess a license to carry a
firearm in Pennsylvania. Id. at 5.
The Commonwealth charged Appellant with first-degree murder,3 two
violations of the Uniform Firearms Act,4 and possession of an instrument of
crime.5 Appellant litigated a timely-filed suppression motion at a hearing held
on September 16, 2019, at which Officers Devine and Kelly testified. The
court denied Appellant’s suppression motion the following day when
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3 18 Pa.C.S. § 2502(a).
4 18 Pa.C.S. §§ 6106 (firearms not to be carried without a license), 6108
(carrying firearms on public streets or public property in Philadelphia).
5 18 Pa.C.S. § 907.
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Appellant’s jury trial commenced. On September 19, 2019, the jury convicted
Appellant on all counts, and the trial court sentenced him to life imprisonment
without the possibility of parole for first-degree murder, and to no further
penalty at the remaining counts. Appellant filed a timely post-sentence
motion, which the court denied on October 30, 2019. He filed a timely notice
of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement.
Appellant now presents a single question for our review: “Does the
evidence the Commonwealth presented at the suppression hearing support
the trial court’s findings of fact and conclusions of law?” Appellant’s Brief at
4 (unnecessary capitalization omitted).
Specifically, Appellant contends:
The testimony of Police Officer Kelly and Police Officer Devine
regarding the description of the alleged shooter undeniably
indicates that Police Officer Devine was unaware of the full scope
of Police Officer Kelly’s description of the alleged shooter when he
attempted to stop [Appellant]. Police Officer Devine’s testimony
is vague and unclear as to what he knew about the alleged shooter
when he attempted to stop [Appellant]. The trial court’s factual
finding that Police Officer Devine was acting on the description of
a black male, dark hat, red or orange shirt, white undershirt, dark
pants, [and] backpack is simply not supported by the record. Nor
was the officer simply making an investigatory stop of [Appellant].
Id. at 14.
It is well established that,
[o]ur 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
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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. 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 our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)
(cleaned up). As implied by McAdoo, Appellant’s burden is heavy, as we must
defer to the suppression court’s factual findings, which necessarily include its
credibility determinations, unless there is no support in the record from the
suppression court. See Commonwealth v. Marshall, 568 A.2d 590, 595
(Pa. 1989) (“When faced with … a conflict of testimony, we defer to the
suppression court, which, as fact finder, passes upon the credibility of
witnesses, and its findings are not disturbed when supported by the record.”).
First, we must address whether Appellant adequately preserved his
claim for our review. The Commonwealth contends that:
Initially, [Appellant] waived the claim he now attempts to raise on
appeal, as it is different from the claim in his statement of matters
complained of on appeal. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”); [see also]
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). In his
statement, he claimed that the trial court erred in denying his
suppression motion because Officer Devine’s testimony was
allegedly shown to be untrue. He cites his argument at the
suppression hearing where he highlighted an alleged discrepancy
between Officer Devine’s testimony at that hearing and the
officer’s written report. That supposed “discrepancy” was that
Officer Devine testified that he saw a red piece of clothing hanging
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out of [Appellant]’s backpack, but that his written report said that
he found a red shirt inside the backpack. N.T.[,] 09/17/2019, [at]
3.
[Appellant] on appeal, however, changes his argument. He now
complains that the police lacked reasonable suspicion to stop him
based solely on the description of the shooter, and that the trial
court’s finding of fact that there were two radio broadcasts of the
shooter’s description was unsupported by the record. When the
trial court has to guess what issues [Appellant] is appealing, it
cannot conduct meaningful review. Commonwealth v.
Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). Lack of a trial
court opinion on the appealed issue poses a substantial
impediment to meaningful and effective review. Lord, 719 A.2d
at 308. Indeed, here, the trial court had no opportunity in its
opinion to address the actual argument that [Appellant] now
presents on appeal. [TCO at] 10–12. This hinders meaningful
appellate review, and [Appellant]’s claim should be rejected for
this reason alone.
Commonwealth’s Brief at 8-9.
We are compelled to agree with the Commonwealth. First, we note that
the trial court advised Appellant in its Rule 1925(b) concise statement order
that any claims not raised in his Rule 1925(b) statement would be waived for
appellate review. See Concise Statement Order, 12/9/19, at 1 (single page).
In his Rule 1925(b) statement, Appellant argued that Officer Devine’s
testimony at the suppression hearing was “incredible” because it was
“substantially different” from his prior testimony at the preliminary hearing
and his subsequent testimony at trial. Rule 1925(b) Statement, 12/30/19, at
2 ¶ 3 (unnumbered pages). In its Rule 1925(a) opinion, the trial court stated
that it did not consider Officer Devine’s preliminary hearing testimony in
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determining the witness’s credibility, because the defense never used the prior
testimony to impeach that witness at the suppression hearing.6 TCO at 10.
In his brief, Appellant now assails the suppression court’s assessment
of both Officers Devine and Kelly’s credibility based on inconsistencies
between and within their respective testimonies at the suppression hearing
regarding the flash description given to Officer Devine by Officer Kelly. See
Appellant’s Brief at 9-13. Appellant essentially argues that these
inconsistencies undermine the suppression court’s determination that Officer
Devine received a single flash information. Id. at 17. Appellant further
maintains that the record instead reveals that the details contained in the flash
description were effectively broadcast in installments, and that it is unclear
how many of those details were known to Officer Devine at the time he
approached Appellant. Id. He then argues that what was known to Officer
Devine did not support that he had reasonable suspicion to believe Appellant
was engaged in criminal activity. Id.
None of these theories were stated, or even fairly suggested, by
Appellant’s Rule 1925(b) statement. The trial court’s opinion did not address
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6 In its Rule 1925(a) opinion, the trial court did not address the assertion that
Officer Devine’s testimony differed from his subsequent trial testimony.
Nevertheless, in In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court held
that our scope of review from a suppression ruling is limited to the evidentiary
record that was created at the suppression hearing, and does not include the
record of the subsequent trial absent extraordinary circumstances. Id. at
1087. Thus, it would be outside our scope of review to reject the suppression
court’s factual findings based on Officer Devine’s inconsistent testimony at
trial.
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these theories, thereby hindering our review of Appellant’s claim. Accordingly,
we conclude that Appellant’s claim, insofar as he argues that the record does
not support the suppression court’s factual findings, is waived.
However, Appellant has consistently maintained that the facts known to
Officer Devine at the time Appellant was effectively seized were not sufficient
to support reasonable suspicion to stop him, an argument that was addressed
by the lower court in its opinion. Although Appellant has waived his challenge
to the suppression court’s factual findings, we will address the legal prong of
that argument, while accepting the factual findings of the court as they are,
out of an abundance of caution.
This Court has addressed the right to be free from unreasonable
search and seizure, pursuant to the Fourth Amendment of the
United States Constitution and Article 1, § 8 of the Pennsylvania
Constitution, as follows:
Article I, § 8 of the Pennsylvania Constitution and the Fourth
Amendment of the United States Constitution afford
protections against unreasonable searches and seizures.
Among the protections is the requirement that an officer
have reasonable suspicion before an investigatory stop.
Our [S]upreme [C]ourt has interpreted Article I, § 8
protection more broadly than the Fourth Amendment and
has found that a seizure occurs when an officer gives chase.
Under Pennsylvania law, any items abandoned by an
individual under pursuit are considered fruits of a seizure.
Those items may only be received in evidence when an
officer, before giving chase, has at least the reasonable
suspicion necessary for an investigatory stop. Stated
another way, when one is unconstitutionally seized by the
police, i.e.[,] without reasonable suspicion or probable
cause, any subsequent flight with the police in pursuit
continues the seizure and any contraband discarded during
the pursuit is considered a product of coercion and is not
admissible against the individual.
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In deciding whether reasonable suspicion exists for an
investigatory stop, our analysis is the same under both
Article I, § 8 and the Fourth Amendment. The fundamental
inquiry is an objective one, namely, whether the facts
available to the officer at the moment of the [intrusion]
warrant a man of reasonable caution in the belief that the
action taken was appropriate. This assessment, like that
applicable to the determination of probable cause, requires
an evaluation of the totality of the circumstances, with a
lesser showing needed to demonstrate reasonable suspicion
in terms of both quantity or content and reliability.
In re M.D., 781 A.2d 192, 197 (Pa. Super. 2001) (internal
citations and quotation marks omitted). Flight by the suspect can
be considered suspicious activity, but flight alone does not give
rise to reasonable suspicion. Id.Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010).
Here, the trial court determined that the flash description relayed to
Officer Devine described a “black male, dark cap with white writing, red shirt,
white undershirt, dark pants, and a dark book bag.” TCO at 12 (citing N.T.,
9/16/19, at 157-70). Officer Devine searched in the vicinity of the shooting
for a person matching that description. Id. About ten blocks away from the
shooting, the officer saw Appellant at a transit stop. Id. Officer Devine
observed that Appellant was wearing a “dark hat, [a] white shirt, dark colored
sweat pants, a dark backpack[,] and an article of red clothing” protruded from
his backpack. Id. When Officer Devine asked Appellant to talk, Appellant
“took off running.” Id. Thus, Appellant was effectively seized when he took
flight. Appellant submits that Officer Devine did not possess reasonable
suspicion of Appellant’s involvement in criminal activity at that moment, based
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primarily on the ostensible weakness of the identifying information from the
flash description.7
The Commonwealth responds as follows:
Here, police had a particularized and objective basis for suspecting
that [Appellant] was the suspected shooter. The trial court found
that Officer Kelly had sent out two flash reports describing the
shooter whom she saw on the surveillance footage: black man,
dark-colored hat with white writing, dark-colored pants, a red or
orange shirt, white undershirt, and a dark-colored backpack. The
trial court found that Officer Devine was searching for the shooter
in the area of the shooting, and decided to go to the nearest [mass
transit] station, thinking the shooter may try to flee the
neighborhood. There, he saw a black man with a dark-colored
hat, a white shirt, a dark backpack, black sweatpants, and an
article of red clothing coming out of the backpack. When Officer
Devine approached [Appellant], [Appellant] fled, and Officer
Devine pursued.
This Court has found that police had reasonable suspicion in
similar cases. In Commonwealth v. Walls, 53 A.3d 889 (Pa.
Super. 2012), this Court found reasonable suspicion to stop Walls
because (1) he was found a half-block away from the called in
location, (2) he matched the description of a black man wearing a
black coat and black jeans, and (3) he fled before the officer could
speak to him. Walls, 53 A.3d at 894. While [Appellant] here was
found several blocks from the crime scene, he was spotted at a
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7 While presenting Appellant’s legal argument before the suppression court,
defense counsel elaborated on the perceived weakness of the description,
stating:
[T]he description is fairly light. There is no facial hair description.
There is no height, weight, anything of that nature. It is simple
clothing and you are talking about a person in our society in
August who is wearing a pair of sweatpants and a T-shirt. There
is going to be many, many people out with white T-shirt, red T-
shirt, orange T-shirt, sweatpants [at] 11:00 [a.m.] that would fit
this description.
N.T., 9/17/19, at 4.
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commuter train station, which the officer logically had deduced
could be fertile ground to canvass because it could provide the
shooter a chance to escape the area quickly. Further, Officer
Devine had a more particularized and objective basis for believing
that [Appellant] was engaged in criminal activity than did the
officers did in Walls, since [Appellant] matched a more specific
description of the offender.
Commonwealth’s Brief at 10-11.
We agree with the Commonwealth’s analysis that Officer Devine had at
least as particular and objective of a basis to stop Appellant as possessed by
the police officer in Walls. Although Officer Devine found Appellant further
away from the crime scene than Walls, the description of Appellant’s clothing
was far more detailed. Moreover, Appellant was not so far away from the
crime scene that it was unreasonable to believe he could have traversed that
distance in the time between the shooting and when Officer Devine first
observed him. In sum: 1) Appellant matched the race of the flash description;
2) Appellant was wearing several items of clothing of identical or similar colors
to the flash description; and 3) Appellant was observed about eight blocks
away from the shooting a short time after it occurred. Based on the totality
of these circumstances, we agree with the lower court that Officer Devine
possessed reasonable suspicion to believe Appellant was the shooter.
Accordingly, the legal prong of Appellant’s suppression claim lacks merit.
In conclusion, we conclude that Appellant waived his challenge(s) to the
suppression court’s factual findings. Further, we ascertain no legal error in
the court’s determination that Officer Devine possessed reasonable suspicion
to stop Appellant at the moment Appellant took flight. As such, the lower
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court did not err in denying Appellant’s motion seeking to suppress evidence
discovered on Appellant’s person and in the abandoned backpack.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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