Com. v. Brown, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAMIL BROWN :
:
Appellant : No. 1453 EDA 2019
Appeal from the Judgment of Sentence Entered March 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010989-2017
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 07, 2020
Kamil Brown appeals from the judgment of sentence, imposed on March
11, 2019, following his conviction for Possession of a Firearm Prohibited.1
Brown challenges the trial court’s order denying his motion to suppress. We
affirm.
After Brown was charged with the above offense, he moved to suppress
the firearm. The evidence at the suppression hearing was as follows. On
December 10, 2017, Officer Timothy Carroll and his partner, Officer Brad
McCabe, were on patrol in the area of 2400 West Montgomery Avenue in
Philadelphia. N.T., Motion Volume I, 10/2/18, at 8. The officers had been
specially assigned to patrol in that area that night due to the high level of
shootings and narcotics. Id. at 9. At approximately 9:15 p.m., the officers
____________________________________________
1 18 Pa.C.S.A. § 6105(a)(1).
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received a radio call reporting a shooting near the 2500 block of Berks Street.
Id. The report described the shooter as an approximately 35-year-old black
male wearing a black jacket and a dark-colored hoodie. Id.
Shortly after receiving the radio call, the officers saw Brown walking just
two blocks away from the reported shooting location. Id. at 11. They believed
that Brown fit the description given over the radio call, as he looked to be
approximately 35 years old and was wearing jeans and a dark blue jacket with
a black hoodie. Id. at 11-12. When Officer McCabe attempted to speak to
Brown from the patrol car, Brown immediately fled. Id. at 13. Officer Carroll
gave chase and quickly apprehended Brown. Id. at 14. Officer Carroll saw
Brown remove a firearm from his waistband while he was running and toss it
under a nearby van. Id. The officers took Brown into custody and charged him
with the above firearm offense.
The trial court concluded that Brown was subject to an investigatory
detention and the officers had reasonable suspicion to stop him. N.T., Hearing
Volume I, 10/18/18, at 10. The court reasoned that Brown met the description
of the shooter that the officers had received over the radio and the officers
had observed him just two blocks from the location reported for the shooting.
Id. The court also determined that the evidence demonstrated that the area
was a high-crime area. Id. The court thus concluded that the officers had
reasonable suspicion to stop Brown. It further determined that Brown’s
subsequent actions – his immediate and unprovoked flight when the officers
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approached him and his discarding of the firearm – the officers gave the
officers probable cause to arrest Brown. Id.
Brown proceeded to a bench trial, and the trial court found him guilty
as above and sentenced him to two to four years of incarceration. N.T.,
Sentencing Volume I, 3/11/19, at 23-24. Brown filed a post-sentence motion
asking the court to change the prison facility to which he was assigned to
serve his sentence. The trial court granted the motion and also granted
counsel’s motion to withdraw. The trial court appointed new counsel who filed
this timely appeal. On appeal, counsel filed a motion for remand as counsel
failed to file a Pa.R.A.P. 1925(b) statement. This Court granted the motion,
counsel filed the Rule 1925(b) statement, and the case has now returned to
this Court.
On appeal, Brown raises the following issue: “Whether the trial court
erred when the court denied the motion to suppress?” Brown’s Br. at 6. Brown
argues that “[t]he [t]rial [c]ourt erred when it denied the motion for
suppression, because police officers violated the Pennsylvania and United
States Constitutions when they chased Kamil Brown without reasonable
suspicion that he was involved in criminal activity.” Id. at 12. He maintains
that “[t]he unreliable anonymous tip did not provide reasonable suspicion”;
“[t]he officers did not have reasonable suspicion to lawfully chase [Brown]”;
and “[r]ecovery of the gun was the result of forced abandonment.” Id. at 14,
19, 21
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We review the denial of a motion to suppress by determining “whether
the record supports the suppression court’s factual findings” and whether the
legal conclusions drawn from those facts are correct. Commonwealth v.
Griffin, 24 A.3d 1037, 1041 (Pa.Super. 2011) (quoting Commonwealth v.
Lohr, 715 A.2d 459, 461 (Pa.Super. 1998)). Where, as here, 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.” Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). If the
record supports the factual findings of the trial court, we may reverse “only if
the court’s legal conclusions are erroneous.” Id. (citing Commonwealth v.
Bomar, 826 A.2d 831, 842 (Pa. 2003)).
Brown argues the officers lacked the reasonable suspicion necessary to
stop him for an investigative detention. Reasonable suspicion exists where the
officer who initiated the stop had articulable facts reasonably causing the
officer to believe, in light of the officer’s training and experience, that criminal
activity was afoot and the person stopped was involved in that activity.
Commonwealth v. Green, 168 A.3d 180, 184 (Pa.Super. 2017). We
determine whether there was reasonable suspicion by examining the totality
of the circumstances known to the officer conducting the stop, at the time of
the stop. Id. “[U]nprovoked flight in a high crime area establish[es] a
reasonable suspicion to believe that criminal activity is afoot to allow for a[n]
[investigatory stop].” Commonwealth v. Washington, 51 A.3d 895, 898
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(Pa.Super. 2012) (citation omitted). Abandoned property is admissible in a
criminal case so long as the abandonment did not result from illegal police
conduct. Commonwealth v. Ibrahim, 127 A.3d 819, 825 (Pa.Super. 2015).
This Court’s decision in Commonwealth v. Foglia, 979 A.2d 357, 361
(Pa.Super. 2009) (en banc), guides our decision here. There, a police officer
and his partner received an anonymous tip that a man dressed in black was
carrying a weapon at a particular location. The area in question was a high-
crime area due to the “high flow of narcotics and weapons.” Id. at 358-59.
The officers proceeded to the location and, within “a minute and a half,”
they observed Foglia dressed in black. Id. at 359. As soon as police arrived,
Foglia began acting in an evasive manner, looking back several times at police
while walking away from them. He then “grabbed around his waistband” and
sat down behind others on the scene. Id. The testifying officer explained that
people commonly carry firearms in their waistbands. Id. The officers stopped
Foglia and a brief pat-down search revealed a pistol in his waistband. Id. at
362. This Court concluded that the officers’ belief that Foglia matched the
description in the anonymous tip, in combination with his behavior upon
seeing police, supplied the officers with reasonable suspicion. Id. at 360.
Like the officers in Foglia, the officers here had reasonable suspicion.
The officers saw Brown near the location of a reported shooting and he closely
matched the description of the shooter. When the officers merely tried to talk
to Brown – they in no way effected a stop - he immediately fled. The evidence
supports the trial court’s conclusion that officers had reasonable suspicion to
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stop Brown, and his subsequent abandonment of the gun was not the result
of illegal police conduct. See Foglia, 979 A.2d at 360. The trial court properly
denied the motion to suppress, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2020
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