J-S29016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MISTER MITCHELL
Appellant No. 1209 WDA 2014
Appeal from the Judgment of Sentence June 26, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000017-2014
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 16, 2015
Appellant, Mister Mitchell, appeals from the June 26, 2014 judgment of
sentence of three years’ probation imposed after the trial court found him
guilty of carrying a firearm without a license.1 After careful review, we
affirm.
The trial court summarized the factual background of this case as
follows.
[A]t approximately 10[:00] p.m. on December 16,
2013, four (4) Pittsburgh Police [d]etectives were
patrolling in an unmarked police vehicle. While
stopped at a traffic light at the intersection of
Homewood and Frankstown Avenues, they observed
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 6106(a)(1).
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[Appellant] grabbing and adjusting the front of his
waistband. When the officers pulled up to
[Appellant], shined a flashlight on him and
announced themselves as police officers, [Appellant]
turned and ran. He was pursued on foot by
Detectives [Mark] Goob and [Edward] Fall[ert] and
the other two (2) officers followed in their vehicle.
Throughout the chase, [Appellant] held his
waistband. Eventually, Detective Goob observed
[Appellant] pull a gun out of his pants, drop it and
continue running. Appellant was eventually
apprehended and was arrested.
Trial Court Opinion, 12/4/14, at 1-2.
On February 4, 2014, the Commonwealth filed an information charging
Appellant with the aforementioned offense. Appellant filed a motion to
suppress evidence on May 8, 2014, and the trial court held a hearing on the
motion on June 26, 2014. At the conclusion of the suppression hearing, the
trial court denied Appellant’s suppression motion, and Appellant proceeded
to a stipulated bench trial. N.T., 6/26/14, at 27. The Commonwealth
presented a certificate of non-licensure form and a crime lab report
indicating that the firearm recovered was in good operating condition. Id. at
29. The trial court found Appellant guilty of the charged offense and
sentenced Appellant to three years’ probation. Id. at 29-30. On July 25,
2014, Appellant filed a timely notice of appeal.2
On appeal, Appellant raises the following issue for our review.
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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I. Did the trial court err in denying [Appellant’s]
motion to suppress where police subjected
[Appellant] to an investigative detention
without the requisite reasonable suspicion to
believe criminal activity was afoot?
Appellant’s Brief at 4.
When reviewing a challenge to a trial court’s denial of a suppression
motion, we adhere to the following well-established standard of review.
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 bound
by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the
suppression court’s conclusions of law.
Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).
Appellant argues the trial court erred in denying his motion to
suppress because police lacked reasonable suspicion that he was engaged in
criminal activity. Appellant’s Brief at 10. Therefore, “the seizure was illegal
under both the Fourth Amendment to the United States Constitution and
Article I, Section 8, of the Pennsylvania Constitution.” Id. Specifically,
Appellant contends that he was seized “at the moment four detectives …
pulled their police vehicle alongside [Appellant], shone a flashlight at him,
and identified themselves as Pittsburgh Police[] ….” Appellant’s Brief at 12.
For the following reasons, we disagree.
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The Fourth Amendment of the United States Constitution guarantees,
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated….”
U.S. Const. amend IV. Similarly, the Pennsylvania Constitution assures
citizens of our Commonwealth that “[t]he people shall be secure in their
persons, houses, papers and possessions from unreasonable searches and
seizures….” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a
governmental intrusion varies with the degree of privacy legitimately
expected and the nature of the governmental intrusion.” Commonwealth
v. Fleet, --- A.3d ---, 2015 WL 1845917, at *4 (Pa. Super. 2015) (citation
omitted). Interactions between law enforcement and citizens fall into one of
the following three categories.
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 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.
Id. (citation omitted). When assessing whether an interaction escalates
from a mere encounter to an investigative detention, we employ the
following standard.
To guide the crucial inquiry as to whether or not a
seizure has been effected, the United States
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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-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. McAdoo, 46, A.3d 781, 784 (Pa. Super. 2012) (citation
omitted), appeal denied, 65 A.3d 413 (Pa. 2013). Moreover, when this
Court evaluates whether an investigative detention is constitutional, the
following principles guide our decision.
A police officer may detain an individual in order to
conduct an investigation if that officer reasonably
suspects that the individual is engaging in criminal
conduct. This standard, less stringent than probable
cause, is commonly known as reasonable suspicion.
In order to determine whether the police officer had
reasonable suspicion, the totality of the
circumstances must be considered. 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. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), citing
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc),
appeal denied, 990 A.2d 727 (Pa. 2010).
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At the suppression hearing, Detective Goob testified as follows
regarding his encounter with Appellant.
[The Commonwealth]:
Q. Could you explain the nature [of
Appellant’s arrest]?
A. Yes. While working in that area -- which
is a high crime area. It is known for a lot of guns
and drug arrests in that vicinity -- while we were
stopped at a traffic light on Homewood and
Frankstown, I observed [Appellant], who is seated at
the defense table …. He was standing on the corner.
There were other people in the area. It was a
fairly busy area. However[,] what drew my attention
to [Appellant] was I noticed him making adjustments
to the front right side of his waistband. …
As the light changed, we crossed over
Frankstown towards [Appellant]. As soon as we
started to go through the light, [Appellant] who is
standing on the corner and looking in our direction,
he turned and started to walk up Homewood. As he
started to walk up Homewood, we got through the
intersection and pulled up beside him.
As he was walking, we slowed our vehicle
down to like the pace that he was walking and as we
did this, Detective Fallert illuminated [Appellant] with
his light and identified us as Pittsburgh Police.
Immediately upon doing that[,] [Appellant]
grabbed the front side of his waistband and started
to run through the vacant lot to our right.
N.T., 6/26/14, at 3-5. Detective Fallert also testified for the Commonwealth
at the suppression hearing and provided the following relevant testimony.
[The Commonwealth]:
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Q. Could you describe the encounter?
[Detective Fallert]:
A. Based on our observations, watching
[Appellant], I believed he had a firearm in his
waistband. He was standing outside store at
Homewood and Frankstown. There were a few other
individuals. They were around the front at the bus
stop and there were a couple people directly in the
store. A male had come out of the store [] at the
same time [as] [Appellant]. Our light changed. We
were the second car in line. We waited until the car
in front of us turned left and we proceeded across
the intersection and pulled up directly across from
[Appellant] who seen [sic] us coming.
Q. At that point what did you do?
A. […] We drove across the street. We
drove up next to [Appellant]. I shined my light on
him. At that point[,] I said [“]Pittsburgh Police[”] and
he immediately looked over, I mean real briefly, and
turned to his right and took off running behind the
convenience store.
Id. at 16-17.
The Commonwealth’s evidence establishes that at the moment police
first came into contact with Appellant, they identified themselves as law
enforcement and shined a light on Appellant. Id. at 11, 17. The evidence
also establishes that the police officers did not say anything else to
Appellant, for instance, requesting identification or commanding Appellant to
stop, before Appellant ran away from the police. See id. In viewing all
surrounding circumstances, we conclude that when the police officers first
came into contact with Appellant, the interaction was a mere encounter, and
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a seizure of Appellant did not occur. See McAdoo; supra; see e.g.
Commonwealth v. Au, 42 A.3d 1002, 1007-1009 (Pa. 2012) (holding,
after discussion of federal and Pennsylvania case law, that “under Fourth
Amendment law as reflected in the decisions of the United States Supreme
Court, a request for identification is not to be regarded as escalatory in
terms of the coercive aspects of a police-citizen encounter[]”).
Following the initial encounter with police, Appellant “took off running,”
at which point he was pursued by the police officers. N.T., 6/26/14, at 17.
Therefore, at this point, a seizure of Appellant occurred. See Ranson,
supra at 77 (observing “pursuit by police constitutes a seizure under the law
of this Commonwealth”). However, the record is clear that at the time police
began pursuing Appellant, he was present in a high-crime area at
approximately 10:00 p.m., and he was observed adjusting his waistband.
N.T., 6/26/14, at 4-5. Additionally, when Detective Fallert illuminated his
flashlight on Appellant and identified himself and his fellow officers as police,
Appellant immediately “grabbed the front side of his waistband and started
to run ….” Id. Under the totality of the circumstances, giving due weight to
the reasonable inferences drawn by Detectives Goob and Fallert in light of
their experience,3 we conclude they had reasonable suspicion to believe
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3
Detective Goob testified he was employed by the Pittsburgh Police
Department for 13 years and the area where he encountered Appellant was
known for “a lot of guns and drug arrests[.]” N.T., 6/26/14, at 3. Detective
(Footnote Continued Next Page)
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Appellant was engaged in criminal conduct. See Ranson, supra; see also
In re D.M., 781 A.2d 1161, 1164 (Pa. 2001) (discussing the relevancy of
flight in determining if reasonable suspicion exists and noting, “it is evident
that unprovoked flight in a high crime area is sufficient to justify a Terry[4]
stop under the Fourth Amendment[]”); cf. Commonwealth v.
Washington, 51 A.3d 895, 898-899 (Pa. Super. 2012) (reviewing cases
where the defendants “clearly … fled from individuals who were recognized
as police” and concluding the “crucial element” when evaluating flight in a
high crime area creating a nexus between running and criminal activity is
that the defendant was “knowingly running from police[]”).
Accordingly, we reject Appellant’s argument that “the trial court erred
in failing to suppress the firearm [he] [] discarded during the police chase.”
Appellant’s Brief at 10. The totality of the circumstances demonstrate that
the police officers had reasonable suspicion to believe Appellant was
engaged in criminal activity when they began their pursuit of Appellant, and
we conclude the trial court did not err in denying Appellant’s motion to
suppress. See Ranson, supra. Therefore, we affirm the June 26, 2014
judgment of sentence.
_______________________
(Footnote Continued)
Fallert testified he was employed with the Pittsburgh Police Department for
21 years, he had attended “an ATF course on characteristics of armed
individuals[,]” and based on his observations of Appellant, he believed
Appellant had a weapon.” Id. at 16-17.
4
Terry v. Ohio, 392 U.S. 1 (1968).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2015
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