Com. v. Gray, L.

J-A35016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

LAPHON GRAY,

Appellant No. 1502 WDA 2013

Appeal from the Judgment of Sentence entered August 21, 2013,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-0008435-2012

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED DECEMBER 24, 2014

Laphon Gray (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of carrying a firearm without a license,

possession of a controlled substance with intent to deliver, and possession of

a controlled substance.1

The trial court detailed the pertinent facts and procedural history as

follows:
On the night of March 28, 2012, [Detectives Kennedy,
Love, Pacheco and Stroschein of the City of Pittsburgh Police]
were patrolling a high crime area of the North Side of the City of
Pittsburgh [in plain clothes and an unmarked vehicle, at
approximately 10 p.m.]. As they were driving, they saw three
males, including [Appellant], standing at an intersection. They
witnessed [Appellant] grab his waistband with two hands and
crouch down in an attempt to conceal himself behind one of the
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1
18 Pa.C.S.A. § 6106, and 35 Pa.C.S.A. § 780-113(a)(30) and (16).
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other males. [Appellant’s] actions led the officers to believe that
he had a firearm in his waistband. When the police identified
themselves to [Appellant], he lifted up the object in his
waistband, looked around, and fled. A pursuit ensued and the
police saw [Appellant], with his right hand, pull out a firearm
from his waistband and throw it along with two white rectangular
objects, believed to be narcotics. [Appellant] was apprehended
and the firearm was recovered. Three feet away from the gun,
the police found two rectangular bundles containing 100 white
stamp packets. The stamp packets contained a total of 2.61
grams of heroin. [A search of Appellant yielded $24 and a cell
phone.]

The firearm was tested and found to be in good operating
condition. [Appellant] was 19 years of age at the time of this
incident and was ineligible to carry a firearm. An expert testified
at trial that [Appellant] possessed the heroin with the intent to
deliver it.

Trial Court Opinion, 4/23/14, at 1; see also N.T., 5/28/13, at 6-28; N.T.,

5/31/13, at 65.

Appellant was charged with firearms not to be carried without a

license, possession with intent to deliver heroin, and possession of heroin.

Appellant filed a suppression motion on October 24, 2012, which, following a

hearing on May 28, 2013, the trial court denied. A jury trial commenced on

May 31, 2013, at the conclusion of which the jury rendered its verdicts.

Following a sentencing hearing, the trial court, on August 21, 2013,

sentenced Appellant to 5 to 10 years of imprisonment, to be followed by five

years of probation. Appellant filed a timely notice of appeal. Both Appellant

and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

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1. DID THE POLICE VIOLATE [APPELANT’S] RIGHTS UNDER
ARTICLE 1 SECTION 8 OF THE PENNSYLVANIA
CONSTITUTION AND THE FOURTH AMENDMENT OF THE
UNITED STATES CONSTITUTION BY SEIZING HIS PERSON
WITHOUT REASONABLE SUSPICION, AND, AS A RESULT, THE
TRIAL COURT ERRED IN NOT SUPPRESSING THE FRUITS OF
THAT CONSTITUTIONAL VIOLATION?

2. DID THE COMMONWEALTH FAIL TO PRODUCE SUFFICIENT
EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT
[APPELLANT] POSSESSED HEROIN WITH INTENT TO
DELIVER?

Appellants’ Brief at 4.

In his first issue, Appellant argues that the Commonwealth failed to

demonstrate that police had reasonable suspicion that criminal activity was

afoot to justify the investigative detention of Appellant, and therefore the

trial court erred in denying Appellant’s suppression motion. Our scope and

standard of review is well-settled:

An appellate court's 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 are supported
by the record and whether the legal conclusions drawn from
those facts are correct. [Because] the prosecution prevailed in
the suppression court, 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 factual findings of
the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted).

Here, Appellant argues that Officer Kennedy’s observations of

Appellant “grabbing his waistband” and “crouching” did not amount to

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reasonable suspicion of criminal activity because under the totality of the

circumstances, no officer could reasonably infer from those observations that

Appellant was engaged in criminal activity. Appellant’s Brief at 11-18.

In Pennsylvania, there are three categories of interaction between the

police and members of the public: 1) mere encounters, which are

characterized by the fact that the suspect has no official compulsion to stop

or respond to the police, and which need not be supported by any level of

suspicion; 2) investigative detentions, in which suspects are required to stop

and submit to a period of detention, but are not subject to such coercive

conditions to qualify as an arrest, and which must be supported by

reasonable suspicion; and 3) arrests, or custodial detentions, which must be

supported by probable cause. Commonwealth v. Astillero, 39 A.3d 353,

357-358 (Pa. Super. 2012).

To determine whether a mere encounter rises to the level
of an investigatory detention, we must discern whether, as a
matter of law, the police conducted a seizure of the person
involved. To decide whether a seizure has occurred, a court
must consider all the circumstances surrounding the encounter
to determine whether the demeanor and conduct of the police
would have communicated to a reasonable person that he or she
was not free to decline the officer's request or otherwise
terminate the encounter. Thus, the focal point of our inquiry
must be whether, considering the circumstances surrounding the
incident, a reasonable person innocent of any crime would have
thought he was being restrained had he been in the defendant's
shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa. Super. 2008)

quoting Commonwealth v. Reppert, 814 A.2d at 1201–1202. See also

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Commonwealth v. Mendenhall, 715 A.2d 1117, 1119 (Pa. 1998) (“in

addressing whether an investigative ‘stop’ occurred ... the pivotal inquiry is

whether, considering all the facts and circumstances evidencing the exercise

of force, a reasonable man would have thought he was being restrained”).

Officer Kennedy testified regarding his interaction with Appellant as

follows:

[W]e were operating an unmarked vehicle and we were in
plainclothes. We approached Kennedy Avenue. ... I observed
three males standing on the corner of Perrysville and Kennedy in
front of a building which would be 2821 Perrysville Avenue. I
turned right onto Kennedy Avenue and slowed down by these
three males that were standing in front of the buildings at which
time [Appellant] grabbed his waistband with both hands and
tried to conceal himself behind one of the other males.

***

Initially when we first went by he kind of crouched down,
bent down trying to conceal himself at which time I illuminated
him with my portable flashlight and I began to identify myself as
Pittsburgh police. He backed up from the male he was trying to
conceal himself behind, took a few steps back. He motioned and
began to pull up on his waistband ... and he started looking
around and fled towards [an] opening between 2821 Perrysville
and 2813.

***
[H]e began to flee toward that opening. Before he
was at the corner, before we took the corner, I saw him pull out
of his right hand which now contained the firearm .... [before] he
turned that corner, that’s whenever he brandished the firearm,
he fled around the corner.

N.T., 5/28/13, at 8-9.

Officer Kennedy testified that the area of Perrysville and Kennedy is a

high crime area in which he has made “dozens and dozens” of arrests. Id.,

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at 9-10. He further testified that Appellant’s furtive movements led him to

believe that Appellant might be armed with a weapon, and that Appellant

fled when the officer, from his unmarked vehicle, illuminated Appellant with

the flashlight and began to say “Pittsburgh Police.” Id. at 10-11. Appellant

was pursued by Officers Stroschein and Pacheco, who took Appellant into

custody and directed Appellant to an area behind 2811 Perrysville, where

Officer Kennedy retrieved a Highpoint 9-millimeter firearm with five rounds

in the magazine and one round in the chamber, and two bundles of heroin.

Id. at 12.

This testimony was corroborated by Officer Stroschein, who testified

that he was in the police car with Officers Love, Pacheco and Kennedy,

driving inbound on Perrysville Avenue when they saw Appellant bend down

and attempt to conceal himself behind the two other people he was with.

Id. at 21. The officer turned right onto Kennedy, and drove alongside the

group, at which time Appellant reached for his waistband and began to flee.

Id. at 22. Detective Kennedy testified that when Appellant fled, he pursued

Appellant and observed him holding a black firearm in his right hand, which

he discarded behind 2811 Perrysville along with two white rectangular

objects. Id. at 19-30.

The trial court concluded that, under the totality of the circumstances,

Officer Kennedy’s interaction with Appellant constituted an investigative

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detention that was supported by reasonable suspicion. The trial court

explained:

In this case, there was ample reasonable suspicion to conduct a
stop because it was at night in a high-crime area, and the
officers observed [Appellant’s] unusual behavior as he attempted
to conceal himself behind his companions. The officers also
observed [Appellant] in possession of what they believed was a
handgun in his waistband. At that point, it was appropriate for
the officers to stop [Appellant] and investigate. ... Once the
police lawfully ordered [Appellant] to stop, he ran and discarded
his gun and drugs. As such, the contraband discarded by
[Appellant] was voluntarily abandoned. ... Therefore, there was
no error in denying suppression this matter.

Trial Court Opinion, 4/23/14, at 2-3 (citations omitted).

Upon review, we find that the police officers’ initial interaction with

Appellant at the street corner constituted a mere encounter that escalated

into an investigative detention when the officers pursued Appellant after he

fled.

“To determine whether a mere encounter rises to the level of an

investigatory detention, we must discern whether, as a matter of law, the

police conducted a seizure of the person involved.” Collins, 950 A.2d at

1046-1047. “To guide the crucial inquiry as to whether or not a seizure has

been effected, the United States Supreme Court has devised an objective

test entailing a determination of whether, in view of all surrounding

circumstances, a reasonable person would have believed that he was free to

leave. In evaluating the circumstances, the focus is directed toward

whether, by means of physical force or show of authority, the citizen-

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subject's movement has in some way been restrained. In making this

determination, courts must apply the totality-of-the-circumstances

approach, with no single factor dictating the ultimate conclusion as to

whether a seizure has occurred.” Commonwealth v. Strickler, 757 A.2d

884, 889–90 (Pa. 2000) (internal citations and footnotes omitted).

“Examples of circumstances that might indicate a seizure, even where the

person did not attempt to leave, would be the threatening presence of

several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer's request might by compelled.”

Commonwealth v. McClease, 750 A.2d 320, 324–25 (Pa. Super. 2000)

quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870,

64 L.Ed.2d 497 (1980)).

“[T]he Pennsylvania Supreme 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.” Commonwealth v. Lyles, 97 A.3d 598, 303 (Pa. 2014).

See also Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa. Super.

2011) (“the approach of a police officer followed by questioning does not

constitute a seizure”). Here, when the officers observed Appellant on the

street corner making furtive movements, the officers were free to approach

Appellant and identify themselves as police officers, and such interaction,

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where the officers drove alongside Appellant, shone a flashlight, and

announced themselves as police, did not rise to the level of a seizure. There

is no evidence that when the officers approached Appellant, they made any

show of physical force or display of authority. No weapons were drawn, and

Appellant was not precluded from leaving. The officers neither restrained

Appellant nor instructed him that he was not free to leave. Accordingly, the

officers’ initial interaction with Appellant, where they simply drove alongside

Appellant, and without exiting their vehicle, illuminated him with a flashlight

and identified themselves as police, required no level of suspicion to be

constitutionally valid. See Commonwealth v. Riley, 715 A.2d 1131, 1134,

(Pa. Super. 1998) (where the police pulled up along the sidewalk in an

unmarked car and then exited the vehicle in order to approach the appellant

and those with him, the mere approach by a law enforcement official did not

need to be supported by any level of suspicion, and carried no official

compulsion on the part of the citizen to stop or to respond); Lyles, 97 A.3d

at 305-306 (where an officer sees men sitting at a vacant building, there is

no impropriety in the officer’s approaching the men, nor in asking their

reason for loitering there, and the officer’s request for identification does not

elevate the interaction from a mere encounter to an investigative detention);

Coleman, 19 A.3d at 1116 (where police officer approached the appellant

and asked him if he had a gun, that interaction constituted a mere encounter

that required no level of suspicion to be constitutionally valid);

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Commonwealth v. Guess, 53 A.3d 895 (Pa. Super. 2012) (where police

officer approached defendant without making any verbal command for

defendant to stop and without impeding his movement, but merely identified

himself and asked if defendant was willing to speak with him, a reasonable

person would have felt free to terminate the encounter during the initial

approach and questioning).

When Appellant fled, however, and the officers pursued and

subsequently arrested him, the encounter escalated into a seizure. See

Commonwealth v. Cottman, 764 A.2d 595, 599 (Pa. Super. 2000) (where

police officer approached three individuals in a parked car and asked if he

could speak to them, and the appellant took flight, the officer’s pursuit of

appellant constituted a seizure). We conclude that the officers’ pursuit of

Appellant was supported by reasonable suspicion, and Appellant’s arrest was

supported by probable cause, given the totality of the following

circumstances: Appellant’s presence in a high crime area, together with his

furtive movements and efforts to conceal himself, his immediate flight when

approached by police, and the officers’ observations of Appellant carrying a

handgun while he fled from officers. See Cottman, 764 A.2d at 599-600

(given the appellant's presence in a high crime area, furtive movement to

conceal an object when seen by police and subsequent flight, specific and

articulable facts existed to substantiate a finding of reasonable suspicion to

pursue him). This reasonable suspicion was further supported by Appellant’s

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subsequent actions in displaying the handgun, which he then discarded

along with packets of contraband during his flight.

We additionally note that, to the extent Appellant seeks to suppress

the handgun and the drugs, our Supreme Court has explained that “[i]n

order to prevail on a [suppression] motion, ... a defendant is required to

separately demonstrate a personal privacy interest in the area searched or

effects seized, and that such interest was ‘actual, societally sanctioned as

reasonable, and justifiable.’ Such a legitimate expectation of privacy is

absent where an owner or possessor meaningfully abdicates his control,

ownership or possessory interest.” Commonwealth v. Hawkins, 718 A.2d

265, 267 (Pa. 1998) (citations and footnote omitted). Here, Appellant

abandoned any personal privacy interest in the gun and drugs upon

discarding them during his flight from the police. Because Appellant’s flight

and the abandonment was not coerced by any illegal police conduct,

Appellant has no standing to contest the search and seizure of items which

he voluntarily abandoned. See Commonwealth v. Riley, 715 A.2d 1131,

1134 (Pa. Super. 1998).

In his second issue, Appellant argues that the Commonwealth failed to

produce sufficient evidence to prove beyond a reasonable doubt that he

possessed heroin with intent to deliver.

Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are sufficient to establish

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all elements of the offense beyond a reasonable doubt. We may
not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant's guilt unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. When evaluating the credibility and weight of
the evidence, the fact-finder is free to believe all, part or none of
the evidence. For purposes of our review under these principles,
we must review the entire record and consider all of the
evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).

At trial, Officers Kennedy, Stroschein and Pacheco testified that they

saw Appellant in possession of a handgun, and that they observed him

discard two packets of contraband, which were later recovered and

determined to contain heroin. N.T., 5/31/13, at 28-68. Officer Kennedy

additionally testified that results from the police crime lab indicated that the

gun was a Hi-Point pistol in good operating condition, and that the

contraband was heroin packed in “two stacks [of] five rubber banded

bundles each holding ten paper packets ... one stack had 50 packets that

contained ... heroin weighing 1.23 grams [and] the other rubber band

bundle [contained] 50 packets [of] heroin [weighing] 1.38 grams,” for a

total of 2.61 grams of heroin. Id. at 36-37.

The Commonwealth also presented the expert testimony of Detective

Mark Goob of the City of Pittsburgh Police Department, who testified that he

believed Appellant possessed the heroin with an intent to deliver. In

reaching his determination, Detective Goob explained that in his experience,

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drug dealers often carry loaded guns to protect their proceeds, and that it is

uncommon for drug users to carry loaded weapons. Id. at 80-83. Detective

Goob additionally noted that the 100 “stamp bags” of heroin had a retail

value of $1,000, and further opined that the fact there were 100 bags

(rather than 99 or 98 bags) indicated that Appellant had recently purchased

them and not sold any yet, given that heroin is commonly sold in bundles of

ten “stamp bags.” Id., at 83-92. The officer further testified that drug

dealers commonly take the money from their last drug sale and use it to

purchase more drugs, and that the 100 stamp bags found on Appellant

together with the fact that Appellant had very little cash on him indicated

that he had recently purchased the heroin. Id. Moreover, Detective Goob

testified that the fact that Appellant was not found carrying any

paraphernalia for using the heroin, indicated that he did not possess it for

personal consumption. Id. at 83-84. The detective stated that in his

experience, it was common for drug dealers to be “alert”, “on their toes”,

and “watching out for police”, while drug users are more “sluggish” in their

behavior, and Appellant’s immediate flight further suggested that he was a

drug dealer. Id. at 83-85. Detective Goob opined that since Appellant was

unemployed, it was unlikely that he would be able to afford $1,000 worth of

heroin without selling at least a portion of it to offset the cost. Id. at 86.

The foregoing testimony, if believed by the jury, was sufficient to

support a determination that Appellant possessed the heroin with the intent

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to deliver it. In re T.B., 11 A.3d 500, 504 (Pa. Super. 2010) (“[I]t is the

province of the trier of fact to pass upon the credibility of witnesses and the

weight to be accorded the evidence produced. The factfinder is free to

believe all, part or none of the evidence. The facts and circumstances

established by the Commonwealth need not be absolutely incompatible with

the defendant's innocence, but the question of any doubt is for the

[factfinder] unless the evidence be so weak and inconclusive that as a

matter of law no probability of fact can be drawn from the combined

circumstances.”).

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2014

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