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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEROME RAYMOND BANKS, :
:
Appellant : No. 895 WDA 2013
Appeal from the Judgment of Sentence April 24, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division No(s).: CP-02-CR-0002813-2013
CP-02-CR-0011408-2012
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 02, 2015
Appellant, Jerome Raymond Banks, appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas following
a bench trial and convictions for possessing a firearm with an altered
manufacturer’s number,1 receiving stolen property,2 firearms not to be
carried without a license,3 and possession of firearm prohibited.4 Appellant
challenges whether the arresting officer possessed the requisite reasonable
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6110.2(a).
2
18 Pa.C.S. § 3925(a).
3
18 Pa.C.S. § 6106(a)(1).
4
18 Pa.C.S. § 6105(a)(1).
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suspicion to conduct a pat-down. We reluctantly conclude Appellant is due
no relief.
We adopt the facts set forth by the trial court.5 See Trial Ct. Op.,
5/6/14, at 1-4. Appellant timely appealed and timely filed a court-ordered
Pa.R.A.P. 1925(b) statement. Appellant raises the following issues:
Were Appellant’s Pa. Const. art. I § 8 and U.S. Const.
amend. IV & XIV constitutional rights violated when the
police, acting without a warrant, detained him for
investigation as he walked along a public street without
the reasonable suspicion required for such a detention
(i.e., objectively reasonable suspicion that he was engaged
in, had been engaged in, or was about to engage in
criminal activity)?
Were Appellant’s Pa. Const. art. I § 8 and U.S. Const.
amend. IV & XIV constitutional rights violated when the
police frisked his person for [a] weapon without reasonable
suspicion required for a protective frisk (i.e., objectively
reasonable suspicion that he was both armed and
presently dangerous at the time of the search or frisk of
his person)?
In view of the proper answers to Question Nos. 1 and 2,
should not the trial court have granted Appellant’s pretrial
motion seeking to suppress the firearm seized from his
person by the police, and should not this Court vacate
Appellant’s convictions and sentences, and remand
Appellant’s case for a retrial on Allegheny County Criminal
Complaint Numbers 2012-11408 and 2013-02813 (with
5
We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant criminal complaint was filed
prior to October 30, 2013, In re L.J. does not apply.
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the firearm seized from his person barred from admission
into evidence)?
Appellant’s Brief at 4.6
We summarize Appellant’s arguments for all of his issues together.
Appellant argues that the police lacked a reasonable suspicion that he was
engaged in criminal activity or was armed. He reasons that walking in a
high crime area while wearing a hooded, zipped sweatshirt in August while
carrying a heavy, unknown object in his waistband did not justify the search
and seizure. Appellant acknowledges that he reported to the police that he
was robbed in the area five days earlier. He further concedes that he was
uncooperative when he was questioned earlier by a police officer about that
robbery, who, coincidentally, was also the instant arresting officer. We are
constrained to hold Appellant is not due relief.
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 are supported by
the record and whether the legal conclusions drawn from
those facts are correct. Where the prosecution prevailed in
the suppression court, we may consider only the
Commonwealth’s evidence 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
6
Appellant admits his brief exceeds the 14,000 word limit set forth in
Pa.R.A.P. 2135. See Appellant’s Counsel’s Cert. of Compliance with Word
Count Restrictions. We decline to quash or dismiss the appeal, however.
See generally Pa.R.A.P. 2101; Commonwealth v. Spuck, 86 A.3d 870
(Pa. Super. 2014).
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bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating
the legal conclusion drawn by the suppression court, this Court may also
consider uncontradicted testimony from the suppression hearing not
included in the suppression court’s findings of fact. Commonwealth v.
Mendenhall, 715 A.2d 1117, 1119 n.1 (Pa. 1998).
Initially we note that Fourth Amendment jurisprudence
has led to the development of three categories of
interactions between citizens and the police. The first of
these 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. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations and
footnote omitted). An investigative detention is also known as a “Terry
stop.” Commonwealth v. Chase, 960 A.2d 108, 117 (Pa. 2008).
The Pennsylvania Supreme Court adopted the objective
Jones/Mendenhall7 standard “in determining whether the conduct of the
police amounts to a seizure or whether there is simply a mere encounter
7
United States v. Mendenhall, 446 U.S. 544 (1980); Commonwealth v.
Jones, 378 A.2d 835, 839 (Pa. 1977).
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between citizen and police officer.” Commonwealth v. Matos, 672 A.2d
769, 774 (Pa. 1996).
In [Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969)],
this Court adopted the United States Supreme Court’s
decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), which permits a police officer to
effect a precautionary seizure where the police have a
reasonable suspicion that criminal activity is afoot. Terry,
and by analogy Hicks, recognized that there are some
instances in which an individual may not be arrested, but
will still be considered to be “seized.” In Jones, this Court
adopted an objective standard for determining what
amount of force constitutes the initiation of a Terry stop:
whether a reasonable person innocent of any crime, would
have thought he was being restrained had he been in the
defendant’s shoes. This case, which preceded the United
States Supreme Court’s decision in . . . Mendenhall, . . .
was a precursor to the so-called “Mendenhall” test
posited by the United States Supreme Court: “a person
has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed he was not free to leave.”
The Jones/Mendenhall standard has since been
consistently followed in Pennsylvania in determining
whether the conduct of the police amounts to a seizure or
whether there is simply a mere encounter between citizen
and police officer.
Id. at 773-74 (punctuation and some citations omitted).
The Pennsylvania Supreme Court provided further guidance in applying
this “totality of the circumstances” test:
In evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show of
authority, the citizen-subject’s movement has in some way
been restrained. In making this determination, courts
must apply the totality-of-the-circumstances approach,
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with no single factor dictating the ultimate conclusion as to
whether a seizure has occurred.
Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000) (footnotes and
some citations omitted). Factors examined in this totality-of-the-
circumstances approach include “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.” Mendenhall, 715 A.2d at
1119. This Court also set forth a non-exclusive list of factors:
[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. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008)
(en banc) (citation omitted).
In sum, the question of “whether the police needed some level of
requisite cause at the time they initially approached” the defendant is
“governed by the type of encounter that the police initiated when they
approached” the defendant. In re D.M., 781 A.2d 1161, 1164 (Pa. 2001)
(emphases added). The critical inquiry is what type of encounter the police
initiated at the time they initially approached the defendant. See id. After
identifying the type of encounter—e.g., mere encounter, investigative
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detention, or custodial detention—this Court must then determine whether
the police had the requisite cause for that encounter, respectively, e.g., no
suspicion required, reasonable suspicion that criminal activity was afoot, or
probable cause for an arrest. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d
at 839 n.4.
In Commonwealth v. Carter, 105 A.3d 765 (Pa. Super. 2014) (en
banc), our Superior Court held the police had reasonable suspicion to stop
and frisk the defendant based on the following:
On November 9, 2011, at approximately 9:00 p.m., Officer
Matthew Blaszczyk of the Philadelphia Police Department
was patrolling near 700 East Madison Avenue in
Philadelphia, at the corner of Madison Avenue and G
Street. Officer Blaszczyk testified that this is a known drug
corner and he personally has made multiple gun and drug
arrests at this corner. At said time, Officer Blaszczyk and
his partner, Officer White, were driving northbound on G
Street when they observed [the defendant] standing on
the northeast corner of the intersection. Officer Blaszczyk
“immediately observed a bulge in [the defendant’s] left
coat pocket.” Officer Blaszczyk believed that it was a
heavy object because of “the way it weighed the jacket
down and the way it protruded.” As Officers Blaszczyk and
White drove northbound by [the defendant], Officer
Blaszczyk noted that, “[the defendant] looked in [their]
direction and began to walk south.” The officers circled
around the block and approached the intersection from a
different direction. Upon returning to the intersection,
Officer Blaszczyk observed that [the defendant] was back
on the same corner, with the same bulge in his coat.
Officer Blaszczyk noted that he and Officer White did this
multiple times.
Each time we came down the street, it was a few times,
maybe three or four, [the defendant] would look in our
direction and walk the opposite way whichever way we
were coming from.
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And the way he turned his body was so that that bulge,
you know, we could see it initially. And then he’d turn. So
he wasn’t in our view.
The officers got out of their vehicle and approached [the
defendant], and again [the defendant] turned his body
away from the officers so they could not see the bulge in
his coat. Officer Blaszczyk further testified that based on
the size and shape of the bulge, the way it weighed [the
defendant’s] coat down, and the way it swung, he believed
the bulge to be a firearm. Officers Blaszczyk and White
stopped [the defendant] and patted him down. During the
pat-down, Officer Blaszczyk noticed upon feeling the bulge,
that he could “immediately feel the shape of a firearm.”
Officer Blaszczyk recovered from [the defendant’s] person
“a 22–caliber Walther handgun, a Walther P–22 model.”
Id. at 766-67 (footnote and citations omitted).
The en banc Court held that the search and seizure was justified:
[T]he Commonwealth, through Officer Blaszczyk,
established that [the defendant] was in a high-crime area,
at night, with a weighted and angled bulge in his coat
pocket. Furthermore, [the defendant] was alerted to the
officers’ presence and intentionally turned his body away
from them, at least three times, to conceal the bulge. The
officers also observed [the defendant] walking away from
the known drug corner whenever the officer[s] passed by
it. In our view, the Commonwealth sufficiently showed
that Officer Blaszczyk had the reasonable suspicion to first
seize [the defendant] as well as conduct the limited Terry
pat-down, as the entire basis for Officer Blaszczyk’s
seizure before the pat-down was that [the defendant] was
armed and dangerous.
Id. at 774-75 (footnote and citations omitted). The Carter Court
emphasized the totality of the circumstances justified the seizure. Id. at
775. The en banc majority also noted that “the Commonwealth would not
be penalized if the officer had been wrong because Terry, by its very
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nature, ‘accepts the risk that officers may stop innocent people.’ Illinois v.
Wardlow, 528 U.S. 119, 126, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).”
Id. at 769 n.4.
Instantly, in a high-crime area around 1:30 p.m. on August 20, 2012,
when the temperature was in the mid-70s, two officers were in a vehicle.8
N.T. Suppression Hr’g, 2/21/13, at 6. The police saw Appellant wearing a
zipped, hooded sweatshirt with his right hand in the front pocket of the
sweatshirt or in front of his waistband holding something heavy. Id. at 6, 8-
10. The police believed Appellant was armed. Id. at 6. The police pulled
up next to Appellant; the plainclothes officer opened the vehicle’s door,
announced “Pittsburgh Police,” displayed his badge, exited the vehicle, and
approached Appellant. Id. at 9-10. The following transpired:
[District Attorney]. Now, as you passed [Appellant], what
did you do, if anything?
[Officer]. We turned our vehicle around and pulled up
beside him. I opened my door and announced “Pittsburgh
Police” and displayed my badge and approached him. He
was still continuing to walk outbound. I got out of my
vehicle and approached him.
Q. Then what did you do?
A. I said, “Pittsburgh Police. I need to talk to you.”
[Appellant] didn’t acknowledge I was there, although we
were in close proximity. He could hear me and did
acknowledge my presence. I closed the gap between the
8
One officer was in plain clothes; the record does not establish the clothing
of the other officer and whether the vehicle was marked or unmarked.
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two of us. At that point he moved his hand out of his
pockets.
I said, “Do you have a weapon?”
Again, he refused to answer me. At that point I
believed he was armed. Did a pat down of his front
waistband where I observed his hands. Immediately felt
the handle of a pistol.
Id. at 9-10. We note the officer previously testified about his belief that
Appellant was armed when they first saw him earlier. Id. at 6.
Instantly, when the police initially approached Appellant, asked to
speak with him, and inquired whether he was armed, the interaction was a
mere encounter or request for information. See Ellis, 662 A.2d at 1047;
see also In re D.M., 781 A.2d at 1164. There was no official compulsion to
stop or to respond. See Ellis, 662 A.2d at 1047.9 The mere encounter,
however, transformed into an investigative detention when the police
conducted a Terry pat down. See Matos, 672 A.2d at 773-74; Chase, 960
A.2d at 117. Having identified the type of encounter, we next ascertain
whether the police had reasonable suspicion of criminal activity. See Ellis,
662 A.2d at 1047; Jones, 378 A.2d at 839 n.4.
9
We acknowledge, “When a police officer initiates an encounter, an
individual as a practical matter never feels free to leave. The police officer
has a weapon. The police officer’s testimony is almost always believed in
court. No responsible person would walk away from an encounter with a
police officer.” Commonwealth v. Lyles, 54 A.3d 76, 84 (Pa. Super. 2012)
(Strassburger, J., concurring), aff’d, 97 A.3d 298 (Pa. 2014).
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Similar to the defendant in Carter who was standing on a street
corner in a high crime area with a bulge in the left front pocket, Appellant
was in a high crime area with his right hand in his sweatshirt or waistband
holding something heavy. Cf. Carter, 105 A.3d at 766. The instant police,
like the police in Carter, also believed Appellant had a firearm. Cf. id. at
767. Appellant, analogous to the Carter defendant, walked away from the
police. Cf. id. at 767. The police—identical to the police in Carter—patted
Appellant down and recovered a firearm. Cf. id. Given the instant facts are
comparable to the facts in Carter, we are constrained to hold that the
Commonwealth, given the totality of the circumstances, established
reasonable suspicion to conduct the Terry pat down. See Strickler, 757
A.2d at 890; Mendenhall, 715 A.2d at 119; cf. Carter, 105 A.3d at 774-
75. Because the record supports the factual findings of the trial court and
the legal conclusions drawn therefrom are correct, we discern no basis for
relief and affirm the judgment of sentence. See In re J.E., 937 A.2d at
425.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 6/2/2015
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