Com. v. Thomas, D.

J-S09043-22
2022 PA Super 62COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D'ANGELO THOMAS :
:
Appellant : No. 1013 EDA 2020
Appeal from the Judgment of Sentence Entered February 21, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002663-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 12, 2022
Appellant D’Angelo Thomas appeals from the judgment of sentence of
three years’ reporting probation entered in the Court of Common Pleas of
Philadelphia County after he was found guilty of Firearms not to be carried
without a license and Carrying firearms on public streets or public property in
Philadelphia1 following a stipulated bench trial. After a careful review, we
affirm.
The trial court set forth the relevant facts herein as follows:
According to the testimony of Officer James Craig, on March
27, 2019 at approximately 2:53 p.m. he was on patrol with his
partner Officer Burton. At this time, Appellant was observed
operating [a] bicycle on the sidewalk in the area of the 2000 block
of Windrim Avenue in the city and county of Philadelphia. N.T.
2/21/20 at p. 7-9. It is a violation of City Ordinance 12-808 for
anyone over the age of 12 to ride their bicycles on the sidewalk.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
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N.T. 2/21/20 at p. 9-10, 20. Officer Craig, without activating his
siren, pulled over his marked patrol vehicle to inform Appellant
that given his age he cannot ride the bicycle on the sidewalk and
instead must ride it on the street. N.T. 2121/20 at p. 10. After
pulling alongside Appellant, Officer Craig asked Appellant “Yo, can
you hold up a second?” N.T. 2/21/20 at p. 10-11, 18, 20.1 While
Officer Burton was exiting the vehicle, Appellant pointed
southbound and uttered something which Officer Craig could not
hear. Immediately afterward, Appellant turned and ran
northbound. While running northbound, Appellant reached into
his wasteband [sic] and discarded a firearm which officers
subsequently recovered. N.T. 2/21/20 at p. 10-11.
___
1 After a thorough cross-examination, this [c]ourt found that the
exact statement by Officer Craig was “Yo, can you hold up for a
second.”
Trial Court Opinion, filed 7/19/21, at 1-2.
On February 21, 2020, immediately prior to the stipulated trial, the trial
court denied Appellant's motion to suppress the firearm recovered at the
scene. Appellant filed a timely notice of appeal on March 17, 2020, and on
July 2, 2020, he filed his concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The trial court filed its Rule 1925(a) Opinion
on July 19, 2021.
In his brief, Appellant presents a single claim for this Court’s review:
Should the court below have found that there was a lack of
probable cause to stop and chase Appellant, and therefore granted
the motion to suppress physical finding that he was coerced to
abandon the firearm recovered from the street by police?
Brief for Appellant at 2.
“Our standard of review in addressing a challenge to a trial court’s denial
of a suppression motion is limited to determining whether the factual findings
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are supported by the record and whether the legal conclusions drawn from
those facts are correct.” Commonwealth v. Williams, 941 A.2d 14, 26
(Pa.Super. 2008) (en banc) (internal citations omitted).
[W]e may consider only the evidence of the prosecution 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
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
Id. at 27.
The reviewing court's scope of review is limited to the evidentiary record
of the pre-trial hearing on the suppression motion. In re L.J., 622 Pa. 126,
79 A.3d 1073 (2013). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa.Super.
2019) (quoting Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super.
2013)). If appellate review of the suppression court's decision “turns on
allegations of legal error,” then the trial court's legal conclusions are
nonbinding on appeal and subject to plenary review. Commonwealth v.
Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017).
Appellant posits that if his circumstance is viewed objectively, it
becomes evident he was forced to stop when the police officers approached
him in a marked vehicle and asked him to “hold up for a second.” He
concludes that he was constitutionally coerced to run and abandon the firearm
because the police had no requisite reasonable suspicion or probable cause to
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stop him. Brief for Appellant at 4-5. In support of this contention, Appellant
reasons as follows:
[ ] Appellant abandoned his firearm after Officer Burton
began to chase on foot and Officer Craig began to chase in a
marked patrol vehicle. (N.T., 02/20/21 at 12-13). Considering the
totality of the circumstances, when Officer Craig pulled up
alongside Appellant with his marked patrol vehicle and asked him
“ly]o, can you hold up a second" he was not free to leave.
Alternatively and logically, if Appellant was free to leave when that
was asked, because it was a ‘mere encounter’, then the police
lacked reasonable suspicion or probable cause to chase Appellant
which Officer Craig did with his patrol vehicle and his partner did
on foot. (N.T. at 12). Thus, when Appellant fled and abandoned
his firearm, it [sic] was coerced by an illegal stop and chase of the
police.
Id. at 8 (emphasis in original).
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee the right of the people
to be secure in their persons, houses, papers, and possessions from
unreasonable searches and seizures. Commonwealth v. Morrison, 166
A.3d 357, 363-64 (Pa.Super. 2017). “To secure the right of citizens to be free
from unreasonable search and seizure, courts in Pennsylvania require law
enforcement officers to demonstrate ascending levels of suspicion to justify
their interactions with citizens to the extent those interactions compromise
individual liberty.” Commonwealth v. Hampton, 204 A.3d 452, 456
(Pa.Super. 2019). Because interactions between law enforcement and the
general citizenry are widely varied, search and seizure law examines how the
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interaction is classified and if a detention has occurred. Commonwealth v.
DeHart, 745 A.2d 633, 636 (Pa.Super. 2000).
The focus of search and seizure law “remains on the delicate balance of
protecting the right of citizens to be free from unreasonable searches and
seizures and protecting the safety of our citizens and police officers by allowing
police to make limited intrusions on citizens while investigating crime.”
Commonwealth v. Moultrie, 870 A.2d 352, 356 (Pa.Super. 2005) (quoting
Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.Super. 2004)) (internal
quotation marks omitted). “[I]n assessing the lawfulness of citizen/police
encounters, a central, threshold issue is whether...the citizen-subject has
been seized.” Commonwealth v. Strickler, 563 Pa. 47, 57, 757 A.2d 884,
889 (2000).
Contacts between the police and citizens fall within three, general
classifications which are described as follows:
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),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth
v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa.
668, 876 A.2d 392 (2005)).
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Police officers must have reasonable suspicion that an individual is
engaged in unlawful activity before subjecting that person to an investigative
detention. Commonwealth v. Cottman, 764 A.2d 595 (Pa.Super. 2000).
An investigative detention, unlike a mere encounter,
constitutes a seizure of a person and thus activates the
protections of Article 1, Section 8 of the Pennsylvania
Constitution. To institute an investigative detention, an officer
must have at least a reasonable suspicion that criminal activity is
afoot. Reasonable suspicion requires a finding that based on the
available facts, a person of reasonable caution would believe the
intrusion was appropriate.
***
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved in
that activity. Therefore, the fundamental inquiry of a reviewing
court must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant a
[person] of reasonable caution in the belief that the action taken
was appropriate.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted).
“[T]he question of whether reasonable suspicion existed at the time of
an investigatory detention must be answered by examining the totality of the
circumstances to determine whether there was a particularized and objective
basis for suspecting the individual stopped of criminal activity.” Cottman,
supra at 598-99 (quoting Commonwealth v. Beasley, 761 A.2d 621, 625-
26 (Pa.Super. 2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001))
(holding that officer’s displaying a police badge and asking an individual if he
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or she would speak to the officer is a mere encounter). “These circumstances
are to be viewed through the eyes of a trained officer.” Commonwealth v.
Jackson, 907 A.2d 540, 543 (Pa.Super. 2006).
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
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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation
marks omitted).
In addition,
When initially evaluating the level of interaction between law
enforcement and a citizen to determine if a seizure occurred,
“courts conduct an objective examination of the totality of the
surrounding circumstances.” Commonwealth v. Lyles, 626 Pa.
343, 350, 97 A.3d 298, 302 (2014).
The totality-of-the-circumstances test is ultimately centered
on whether the suspect has in some way been restrained by
physical force or show of coercive authority. Under this test, no
single factor controls the ultimate conclusion as to whether a
seizure occurred—to guide the inquiry, the United States Supreme
Court and this Court have employed an objective test entailing a
determination of whether a reasonable person would have felt free
to leave or otherwise terminate the encounter. [W]hat constitutes
a restraint on liberty prompting a person to conclude that he is
not free to “leave” will vary, not only with the particular police
conduct at issue, but also with the setting in which the conduct
occurs.
This Court and the United States Supreme Court have
repeatedly held a seizure does not occur where officers merely
approach a person in public and question the individual or request
to see identification. Officers may request identification or
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question an individual so long as the officers do not convey a
message that compliance with their requests is required. Although
police may request a person's identification, such individual still
maintains the right to ignore the police and go about his business.
Id. at 350-51, 97 A.3d at 302-03 (internal citations and quotation
marks omitted).
Luczki, supra at 543. Furthermore,
[a]though cases involving similar or comparable seizure
determinations may serve as guideposts, a suppression court
must independently employ the totality-of-the-circumstances test
in determining whether a seizure occurred.” Lyles, supra at 354,
97 A.3d at 305. See, e.g., id. (holding that no single factor
controls in seizure-of-person analysis; police officer's request for
identification alone does not raise escalatory inference of
detention; courts must make independent examination of totality
of circumstances surrounding interaction to determine if seizure
occurred; concluding no “seizure” occurred in absence of credible
evidence of physical restraint, weapons used, blockade or
obstruction of citizen's ability to walk away; tenor of interaction
was not inherently coercive); [Commonwealth v.] Au, [615 Pa.
330, 42 A.3d 1002 (2012)], (holding unrebutted testimony of
officer established only mere encounter with Appellee had
occurred, when officer interacted with Appellee in public, did not
activate emergency lights, did not block Appellee's car, did not
brandish weapon, make intimidating movement or overwhelming
show of force, threat, or command, or speak in authoritative tone;
use of officer's headlights and flashlight was in furtherance of
officer's safety and within ambit of acceptable, non-escalatory
factors);[Commonwealth v.] Newsome, [170 A.3d 1151 (Pa.
Super. 2017)] (holding defendant was not “seized” during his
initial interaction with officer, where officer responded to radio call
in marked cruiser and saw Appellee walk away from group of
males; officer exited his vehicle and told Appellee to “come here,”
but Appellee refused and continued to walk away; officer then
observed Appellee remove object and place it in nearby flowerpot;
object later recovered was firearm); [Commonwealth v.]
Young, [904 A.2d 947, 957 (Pa.Super. 2006), appeal denied, 591
Pa. 664, 916 A.2d 633 (2006) (holding initial interaction with
Appellee was mere encounter, when three officers in plainclothes
exited an unmarked vehicle, approached Appellee on public street
and asked Appellee what he was doing and whether he had
anything on his person that could harm officers; two brief
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questions constituted mere encounter, as there was no restraint
of Appellee's liberty, no physical force, and no show of authority
or level of coercion, beyond officer's mere employment, to convey
demand for compliance or threat of tangible consequences from
refusal). Compare [Commonwealth v. ] Adams, [651 Pa. 440,
205 A.3d 1196 (2019)] (holding interaction between police officer
and defendant was investigative detention, where officer would
not allow defendant to leave his vehicle; officer did not simply
request that defendant stay in his car; instead, officer physically
closed car door and barred defendant's exit; officer's action of
physically closing door as defendant opened it communicated
demand to remain in car at that location; officer's acts constituted
type of escalatory factor that signals “seizure” by restraint of
freedom); Commonwealth v. Livingston, 644 Pa. 27, 174 A.3d
609 (2017) (plurality) (holding interaction between police officer
and defendant was investigative detention, where defendant's car
was already parked on side of interstate highway, and officer
pulled his patrol car alongside defendant's car, with his emergency
lights activated, ostensibly under community caretaking function,
but officer was unable to articulate specific and objective facts to
suggest defendant needed assistance);[Commonwealth v.]
Hampton, [204 A.3d 452 (Pa.Super. 2019)] (holding interaction
between police officer and defendant was investigative detention,
where defendant drove his vehicle from roadway into church field,
and officer pulled her marked vehicle into field behind defendant's
car, effectively blocking his exit, as defendant's vehicle was facing
building so he could not travel forward). Importantly, “The issue
of whether an individual has been seized is distinct from the issue
of whether that seizure was reasonable.” Hampton, supra at
458.
Id. at 546.
The Pennsylvania Supreme Court has instructed this Court to view “all
circumstances evidencing a show of authority or exercise of force, including
the demeanor of the police officer, the manner of expression used by the
officer in addressing the citizen, and the content of the interrogatories or
statements” when determining whether an officer’s conduct is a mere
encounter with a citizen or amounts to a seizure. Commonwealth v.
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Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1119 (1998). The following, non-
exclusive list of factors is also relevant to the inquiry:
[T]he number of officers present during the interaction; whether
the officer informs the citizen they are suspected of criminal
activity; the officer's demeanor and tone of voice; the location and
timing of the interaction; the visible presence of weapons on the
officer; and the questions asked. Otherwise inoffensive contact
between a member of the public and the police cannot, as a matter
of law, amount to a seizure of that person.
Commonwealth v. Parker, 161 A.3d 357, 363 (Pa.Super. 2017).
The trial court set forth its reasoning for denying the motion to suppress
as follows:
Here, Officer Craig's words are significant. Officer Craig
asked "Yo, can you hold up a second?" Taken literally, Appellant
with [sic] an option to decline the encounter. He was as informed
him [sic] that any potential encounter would be extremely brief.
Further, there was no testimony that Officer Craig activated his
sirens at any point, despite being in a marked vehicle. Instead,
Officer Craig pulled over and asked if Appellant could hold on for
a second. At that point, Officer Burton exited the vehicle for a
mere encounter. This was not a show of force sufficient to make
a person feel they [sic] were not free to leave or terminate the
encounter. Instead, this was viewed as the most professional
manner of notifying Appellant that he should be riding his bicycle
on the street as opposed to the sidewalk because it was in
violation of a city ordinance. Appellant opted to run and abandon
a firearm in his possession. This interaction did not go beyond a
mere encounter, since the encounter would have been voluntary
as evidenced by the language used by Officer Craig. The facts of
this case are similar to Newsome, however in Newsome [sic] the
defendant was instructed to “stop for a minute” while here
Appellant was asked to “hold up a second.” Given the totality of
the circumstances, this encounter did not rise to the level of an
investigative detention.
Trial Court Opinion, filed 7/19/21, at 5.
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In the alternative, the trial court found that since Appellant’s contact
with Officers Craig and Burton constituted a mere encounter, there was no
need to show they had reasonable suspicion before they approached him,
which is required only where an interaction rises to the level of an investigative
detention. However, the court found reasonable suspicion that Appellant had
violated City Ordinance 12-808 existed, and in doing so stated:
Appellant was observed riding a bicycle in violation of
Philadelphia City Ordinance 12-808.2 While such a violation only
entails a citation and a small fine, the issuance of a citation
necessarily involves a brief period during which a pedestrian or a
subject of a vehicle stop will not be free to leave while the officer
obtains information from an individual. See 75 Pa.C.S. § 6308(b)
(authorizing an officer conducting a traffic stop to check “the
vehicle's registration, proof of financial responsibility, vehicle
identification number or engine number or the driver's license, or
... secure such other information as the officer may reasonably
believe to be necessary to enforce the provisions of the Motor
Vehicle Code[”]); Pa.R.Crim.P. 403(A)(2) (requiring that a citation
contain the name and address of the defendant).
Here, Officer Craig witnessed the violation by Appellant. As
a result he was justified in stopping Appellant for purposes of
issuing a citation, or in this case simply warning [ ] Appellant that
he was in violation of said ordinance. Regardless of the nature of
the offense, Officer Craig was permitted to temporarily detain
Appellant to either issue a citation or warn him he was in violation
of a city ordinance as explicitly authorized by 75 Pa.C.S. §
6308(b). Since Appellant almost immediately fled and abandoned
his property during the flight, there is no need to address
Appellant’s second issue, since no pat-down occurred. Regarding
the issue of forced abandonment, that issue becomes moot since
no illegal stop occurred.
_____
2 § 12-808. Riding on Sidewalks.
(1) No person shall ride a bicycle upon a sidewalk, except as
follows:
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(a) Children under the age of twelve may ride on the
sidewalk, other than in a business district as defined in the Vehicle
Code.
(b) Riding a bicycle on the sidewalk is permitted where
appropriate signs are posted for shared pedestrian and bicycling
use by the Department of Streets at locations determined by the
Department by regulation, safety, existing and expected density
of use by pedestrians and bicyclists, motorist safety, traffic flow,
and the free ingress and ...
Id. at 5-6, 7-8.2
Following our review, we find the initial interaction between the officers
and Appellant was limited, informal, and carried all the hallmarks of a mere
encounter. On March 27, 2019, at approximately 2:53 p.m., Officers Craig
and Burton observed Appellant riding a bicycle on the sidewalk in the 2000
block of Windrim Street which is a violation of City Ordinance 12-808. N.T.,
2/21/20, at 9-10. Officer Craig indicated that he normally does not write
tickets for such a violation. Instead, he advises individuals on the law and
informs them they should be riding on the street, not on the sidewalk. Id. at
10. As the officers approached in their marked patrol vehicle, Appellant
crossed over to Germantown Avenue. Id. at 10.
The officers pulled up next to Appellant at which time Officer Craig asked
“Yo, can you hold up for a second?” Appellant, who was within five feet of the
patrol car on the passenger side, stopped and stepped off the bicycle, at which
time Officer Burton, without speaking, exited the vehicle. Id. at 10-12.
____________________________________________
2 The trial court’s footnote ended with an ellipsis.
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Appellant then pointed southbound, said something, and began to run
northbound, at which time he “reached into his waistband with his right hand
and threw a firearm onto the 4500 block of Germantown.” Id. at 10-11. Only
about one second passed between the time Officer Burton got out of the
vehicle and Appellant started to run away. Id. at 12. At no point did either
officer have his gun drawn, tell Appellant he could not leave, or even get within
arm’s reach of Appellant. Id. at 12.
The above testimony evinces that the only verbal interaction prior to the
time Appellant stepped off his bicycle, ran from the police, and abandoned his
firearm was initiated by Officer Craig’s asking whether Appellant “can [ ] hold
up for a second?” while both officers were in the patrol car. In doing so,
Officer Craig conveyed no demand for compliance or threatened any
consequences for non-compliance; he merely asked if he could speak to
Appellant. Then, without provocation, Appellant attempted to avert the
officers’ attention before he ran and threw his firearm as Officer Burton had
begun to exit the patrol car.
The record is devoid of any evidence suggesting that either officer
activated the emergency lights of the patrol car, brandished his weapon, or
engaged in an overwhelming show of force. Further, neither officer used a
commanding tone of voice or informed Appellant that he was not free to leave,
nor was there any evidence presented that either positioned himself in a
manner that obstructed Appellant’s ability to continue walking down the street
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See Mendenhall, supra; Newsome, supra. Quite the opposite is true, as
Appellant ran away from them after trying to divert their attention.
As our Supreme Court has stated:
These were permissible acts that do not implicate the Fourth
Amendment or Article I, § 8. Therefore, any “escalation” perceived
by appellant or by the officer did not render the request
objectively unconstitutional. The request was not accompanied by
physical restraint, manifestation of authority, or a mandate to
comply. The officer simply asked for appellant's identification; he
did not demand it or require acquiescence, and appellant gave it
to him voluntarily. The officer did not express dissatisfaction with
appellant's reply or tell appellant he was not free to leave. There
is no evidence appellant was confined or prevented from
departing, or that the officer impeded his movement in any way,
as the interaction took place on a public street in broad daylight.
There was no evidence the officer brandished a weapon or
threatened appellant or that the interaction was per se coercive
or intimidating. There is no record of the officer displaying an
aggressive demeanor or using an authoritative tone suggesting
there would be negative consequences if appellant failed to
identify himself; he did nothing more than request appellant's
identification. Had there been no repetitive furtive conduct by
appellant, there is no reason to think the encounter would not
have terminated promptly once the officer recorded the minimal
information he requested.
***
Although he also testified he believed appellant was not free to
leave while he was recording the information, this was not
affirmatively expressed to appellant. And as noted, the officer's
subjective views are as immaterial to the objective standard as
are appellant's. See Commonwealth v. Lagana, 517 Pa. 371,
537 A.2d 1351, 1355 n. 4 (1988) (citation omitted) (“The test of
when a person is arrested is an objective one and depends upon
the reasonable impression conveyed to the person seized and not
the subjective view of the officers or the person being seized.”).
Commonwealth v. Lyles, 626 Pa. 343, 355–56, 97 A.3d 298, 306-07
(2014).
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In viewing the totality of the circumstances surrounding the incident
herein, we find the initial interaction did not escalate beyond a mere encounter
which did not require any level of suspicion. See Luczki, supra; Newsome,
supra; Bryant, supra; Au, supra; Goldsborough, supra; Young, supra.Because the trial court’s factual findings are supported by the record, its ruling
on Appellant’s suppression motion was proper. Luczki, supra. Accordingly,
we affirm Appellant’s judgment of sentence.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
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