J-A12013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY JACKSON, :
:
Appellant : No. 158 EDA 2013
Appeal from the Judgment of Sentence Entered December 10, 2012,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0001601-2012.
BEFORE: SHOGAN, STABILE and PLATT*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 17, 2014
Appellant, Troy Jackson, appeals from the December 10, 2012
judgment of sentence following his conviction on weapons charges at a
bench trial. We affirm.
The trial court summarized the facts of the crime as follows:
[T]he Commonwealth presented the testimony of the arresting
officer, Philadelphia Police Officer Darnell Young. Officer Young
testified that he and his partner were patrolling the 12th District
of Philadelphia in a marked car on January 20th 2012, when at
approximately 7:00 p.m. they received information via radio call
about a robbery in progress at point of gun at 52nd Street and
Baltimore Street. The radio call contained flash information,
provided by an identified complainant, of a black male wearing a
black hat with blue jeans. Less than one minute after receiving
the call, the officers observed defendant at the 5200 block of
Broomall Street, which is a street that branches off from where
Baltimore Street and Broomall Street intersect on 52nd Street.
Defendant was wearing a black hooded sweatshirt, black puffy
jacket, blue jeans, and gray sneakers. Officer Young testified
__________________
*Retired Senior Judge assigned to the Superior Court.
J-A12013-14
that this particular area is one in which there are both robberies
as well as gun violence.
Based on his experience and the flash report, Officer
Young approached and stopped the defendant. Once stopped,
Officer Young conducted a pat down of defendant and felt the
butt of a gun on the right side of his waistband. A firearm was
then recovered and placed on Property Receipt 3021384.
Trial Court Opinion, 7/12/13, at 2.
Appellant was arrested on January 20, 2012, and charged with various
weapons violations. On April 2, 2012, he filed a motion to suppress, which
was denied following a hearing on the day of trial. Appellant was found
guilty at a bench trial on August 1, 2012, of all three charges: persons not
to possess firearms, firearms not to be carried without a license, and
carrying firearms on public streets or public property in Philadelphia. On
December 10, 2012, the trial court sentenced Appellant to an aggregate
term of three to six years of imprisonment followed by three years of
reporting probation. Appellant filed a timely notice of appeal on January 8,
2013. Both the trial court and Appellant complied with Pa.R.A.P. 1925.
Appellant raises the following single suppression issue for our review:
Did not the trial court err as a matter of law in denying
on to suppress the firearm in violation of his
state and federal rights to be free from unreasonable searches
and seizures where [A]ppellant was stopped and searched
without reasonable suspicion based on uncorroborated flash
information, was not seen engaging in suspicious or criminal
behavior, and did not match the description provided of the
suspect?
-2-
J-A12013-14
In reviewing the denial of a motion to suppress,1 we must determine
dings and the
legitimacy of the inferences and legal conclusions drawn from those findings.
Commonwealth v. Harrell, 65 A.3d 420, 433 (Pa. Super. 2013) (citation
omitted). Where the suppression court finds in favor of the prosecution:
[o]ur scope of review is limited; we 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.
Commonwealth v. Wormley, 949 A.2d 946, 948 (Pa. Super. 2008)
(quoting Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super.
2002) (en banc)). It is a well-settled principle that appellate courts must
defer to the credibility determinations of the trial court, which observed the
demeanor of the witnesses and heard them testify. Commonwealth v.
Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004).
1
Recently, in In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court
prospectively applied a new rule regarding the scope of review in
review in
suppression matters includes the suppression hearing record and not
evidence elicited at trial. As the litigation in this case commenced prior to
L.J., it has no bearing on the instant case. Commonwealth v. Hale, 85
A.3d 570, 574 (Pa. Super. 2014).
-3-
J-A12013-14
Appellant contends that the trial court erred in concluding that Officer
Young had reasonable suspicion to stop and frisk Appellant, maintaining that
the Commonwealth failed to offer articulable facts to support the reasonable
suspicion. Appel
There are three distinct levels of interaction between law enforcement
and the general public: a mere encounter, which need not be supported by
any level of suspicion; an investigative detention, which must be supported
by reasonable suspicion; and an arrest or custodial detention, which must be
supported by probable cause. Commonwealth v. Walls, 53 A.3d 889,
892 893 (Pa. Super. 2012). In the instant case, we agree with the trial
h Appellant rose to the level of an
investigative detention. Accordingly, we must evaluate whether Officer
Young had the required reasonable suspicion to detain Appellant.
The determination of whether an officer had reasonable suspicion that
criminality was afoot so as to justify an investigatory detention is an
objective one, which must be considered in light of the totality of the
circumstances. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011)
(citing Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999)
duty of the suppression court to independently evaluate whether, under the
particular facts of a case, an objectively reasonable police officer would have
Walls, 53 A.3d at 893
-4-
J-A12013-14
(citing Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 1108 (Pa.
also afford due weight to the specific, reasonable inferences drawn from the
owledge that innocent facts,
Commonwealth v. Downey, 39 A.3d 401, 406 (Pa. Super. 2012) (citing
Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010)).
The trial court stated the following in support of its conclusion that
suppression of the firearm should be denied:
When looking at the totality of the circumstances, close
spatial and temporal proximity of a suspect to the crime scene
as well as areas of expected criminal activity are relevant
considerations in determining reasonable suspicion.
Com[monwealth] v. Jackson, 519 A.2d 427, 438 (Pa. Super.
1986); Com[monwealth] v. Zhahir, 751 A.2d 1153, 1157 (Pa.
2000). Officer Young testified that the radio call was for 52nd
Street and Baltimore Street and that defendant was first
observed at the 5200 block of Broomall Street. When
questioned regarding the proximity of the two streets to one
another, the officer explained that Broomall Street merely
branches off from where Baltimore Street and Broomall Street
intersect at 52nd Street. From the description provided by
Officer Young it is clear that [Appellant] was stopped at a
location that was close in proximity to the scene of the crime.
e stated that
he first observed [Appellant] approximately less than one minute
after the radio call. Finally, during an inquiry by the District
Attorney about the character of the area where [Appellant] was
stopped, Officer Young testified that based on his fifteen years of
experience in the 12th District of Philadelphia, it is an area in
which both robberies as well as gun violence take place. Based
on this information, the spatial and temporal proximity of
defendant to the scene of the robbery as well as the character of
-5-
J-A12013-14
the area where he was stopped established grounds for
reasonable suspicion to make a lawful Terry stop.
Trial Court Opinion, 7/12/13, at 6.
reflects that the police possessed the requisite reasonable suspicion when
Appellant was stopped. While patrolling in a high-crime area, Officer Young,
who had fifteen years of experience as an officer in the 12th District, received
a flash report of a gunpoint robbery in progress less than one block away
from him. N.T., 8/1/12, 8 11, 14 15. The flash report noted that the
victim had been identified by other officers and had provided a physical
description of the assailant. Id. at 8. Less than one minute after receiving
this report, Officer Young observed Appellant, who matched the physical
description of the assailant. Id. at 11 12. The officer asked Appellant to
stop and, in light of the nature of the reported crime, frisked him for
weapons. Id. at 12. Shortly thereafter, the victim, in the company of police
officers, arrived on the scene. Id. at 17. As we stated in Commonwealth
v. Cruz, 21 A.3d 1247, 1251 (Pa. Super. 2011):
First, not only was the complainant known to the police, the
complainant was actually in the company of police and surely
risked prosecution for false information. [Commonwealth v.]
Altadonna, [817 A.2d 1145, 1152 (Pa. Super. 2003)]. Second,
our cases have also regarded information coming from the actual
crime victim as meriting a high degree of reliability. In re D.M.,
556 Pa. at 165, 727 A.2d at 558. Therefore, we find that [the]
Officer . . . possessed the requisite reasonable suspicion to
justify the stop of [the] appellant.
-6-
J-A12013-14
treat
12 14. The potential significance of this fact is that our case law
distinguishes between anonymous tips, which are inherently less reliable,
and information provided by people known to police, regardless of whether
the arresting officer was personally familiar with the tipster. See, e.g.,
Cruz; Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 965 (Pa.
Super. 1999) (en banc) (explaining 911 report from identified witness gave
officer on the scene reasonable suspicion to stop, even though the officer
never spoke directly to the witness). Persons who identify themselves to
formant, unlike the anonymous
one, faces risk of prosecution for filing a false claim should the information
Commonwealth v. Kondash, 808 A.2d 943, 947 (Pa. Super.
2002).
Here, the victim complainant was identified by police, remained in
thei
detention. Moreover, Officer Young testified that he knew the victim had
description less than one block away and less than one minute earlier.
-7-
J-A12013-14
Officer Young also knew that the victim had been identified by fellow officers
and was accompanied by them when he was brought to the scene.
Moreover, to the extent Appellant suggests he did not match the
description of the robber in the flash report because he did not wear a hat,
flash report, they observed Appellant within one minute of the robbery,
within one-half block of the robbery. He was the same race as the assailant
and wore the same color and type of pants. The only discrepancy was that
the robber was described as wearing a black hat, and Appellant had a black
hoodie. As the Commonwealth points out, the hat was a small article of
clothing that Appellant could have removed and hidden in a coat or pocket.
Further, the case law that Appellant cites in support of his claim
regarding this minute discrepancy between the flash report and Appellant,
involved more permanent variations that could not be altered quickly. See,
e.g., Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969) (assailant
described as having a mustache; the appellant was clean-shaven);
Commonwealth v. Pinney, 378 A.2d 293, 295 (Pa. 1977) (description
included prominent facial mark; the appellant was four inches shorter, thirty
pounds lighter, and had no facial marks); Commonwealth v. Youngblood,
359 A.2d 456 (Pa. Super. 1976) (description was of fourteen-year-old
-8-
J-A12013-14
suspect; the appellant was twenty-five years old with a full beard). The
mere fact that Appellant did not have one article of clothing described in the
flash report that was small, portable, and easily discarded or concealed, did
not deprive police of reasonable suspicion to stop and frisk him. See, e.g.,
Commonwealth v. Vinson, 522 A.2d 1155, 1157 (Pa. Super. 1987) (stop
proper although the appellant and his companion were shorter than the
Commonwealth v.
Sheridan, 437 A.2d 44 (Pa. Super. 1981) (stop was proper even though the
defendant wore a different color and type of coat from the description, and
he lacked the described hat).
circumstances through the grudging eyes of hindsight nor in terms of library
Commonwealth v. Jackson, 907 A.2d 540, 543 (Pa. Super. 2006)
(quoting Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa. Super. 1997)).
The totality of these facts, in the knowledge of Officer Young at the time,
was sufficient to establish reasonable suspicion of criminal activity. Thus,
we conclude that the detention was lawful, and that the trial court properly
held the evidence garnered as a result thereof should not be suppressed.
Judgment of sentence affirmed.
-9-
J-A12013-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
-10-