J-S43013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CURTIS FISHER,
Appellant No. 2224 EDA 2014
Appeal from the Judgment of Sentence of July 3, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009380-2013
BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 19, 2015
Appellant, Curtis Fisher, appeals from the judgment of sentence
entered on July 3, 2014. We affirm.
The factual background of this case is as follows. On July 2, 2013,
Officer Dave Palma and Officer Waltman,1 as part of their normal routine,
viewed photographs of males wanted for violent offenses prior to beginning
their shift. At approximately 8:25 p.m., Officers Palma and Waltman
observed Appellant in the 2400 block of Elkhart Street. Officer Palma
believed Appellant resembled Steven Giddings, an individual wanted on
homicide charges.
When Officers Palma and Waltman approached Appellant, he stated
“What? You all coming for me? I didn’t do nothing. What you want with
1
Officer Waltman’s given name does not appear in the certified record.
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me?” Appellant began to retreat by walking backwards. Officer Palma then
noticed a bulge in Appellant’s pants pocket which resembled a firearm.
Officers Palma and Waltman ordered Appellant to stop. Eventually, he did
surrender himself and laid on the ground. Although Appellant resisted their
attempts at frisking him, Officers Palma and Waltman recovered a firearm
and marijuana from Appellant’s person.
The relevant procedural history of this case is as follows. On August 1,
2013, Appellant was charged via criminal information with possession of a
firearm by a prohibited person,2 carrying a firearm without a license,3
carrying a firearm on the streets of Philadelphia,4 resisting arrest,5
possession of marijuana,6 and possession of drug paraphernalia.7 On
September 4, 2013, Appellant filed his omnibus pretrial motion, which
included a suppression motion. On January 2, 2014, a suppression hearing
was held. At the conclusion of that hearing, the suppression court denied
Appellant’s suppression motion. On April 21, 2014, Appellant proceeded to a
stipulated bench trial. He was found guilty of possession of a firearm by a
2
18 Pa.C.S.A. § 6105(a)(1).
3
18 Pa.C.S.A. § 6106(a)(1).
4
18 Pa.C.S.A. § 6108.
5
18 Pa.C.S.A. § 5104.
6
35 P.S. § 780-113(a)(31).
7
35 P.S. § 780-113(a)(32).
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prohibited person. The remaining charges were nolle prossed. On July 3,
2014, Appellant was sentenced to three to six years’ imprisonment. This
timely appeal followed.8
Appellant presents one issue for our review:
Where [Appellant] was detained and searched solely on the basis
of a wanted poster which depicted someone else and evidence of
a bulge in his pockets, [was] such detention and search []
unsupported by reasonable suspicion or probable cause in
violation of the Fourth and Fourteenth Amendments to the
United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution and therefore should not the gun and
other physical evidence subsequently seized by police have been
suppressed?
Appellant’s Brief at 3.
Our “standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v.
Garibay, 106 A.3d 136, 138 (Pa. Super. 2014) (citation omitted). “[O]ur
scope of review is limited to the factual findings and legal conclusions of the
suppression court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation
omitted). “We may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains uncontradicted when read
8
On July 30, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On September 18, 2014, Appellant filed his concise
statement. On October 30, 2014, the trial court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.
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in the context of the record as a whole.” Commonwealth v. Gary, 91 A.3d
102, 106 (Pa. 2014) (citation omitted).
“Both the Fourth Amendment to the United States Constitution and
Article I, § 8 of the Pennsylvania Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. Perel, 107 A.3d
185, 198 (Pa. Super. 2014) (citation omitted). “To safeguard these rights,
courts require police to articulate the basis for their interaction with citizens
in three increasingly intrusive situations.” Commonwealth v. Clemens, 66
A.3d 373, 378 (Pa. Super. 2013) (internal alterations, quotation marks, and
citation omitted).
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. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014)
(internal alteration, quotation marks, and citation omitted). The burden is
on the Commonwealth to prove, by a preponderance of the evidence, that
the evidence seized from Appellee was legally obtained. Commonwealth v.
Enimpah, 106 A.3d 695, 701 (Pa. 2014).
We agree with the trial court that the interaction between Appellant
and the police officers was a mere encounter prior to Officer Palma
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observing a bulge in Appellant’s pocket. The police officers were merely
walking towards Appellant when he began speaking and they observed the
bulge in his pocket. Prior to this observation, Appellant was under no
obligation to stop or to speak with the officers. Thus, it was a mere
encounter. See Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa.
Super. 2011) (citations omitted) (“Both the United States and Pennsylvania
Supreme Courts have held that the approach of a police officer followed by
questioning does not constitute a seizure.”).
Appellant’s reliance on United States v. Hensley, 469 U.S. 221
(1985), is inapposite. In Hensley, the Supreme Court of the United States
addressed a situation in which an investigative detention was conducted
merely for the purposes of investing a completed crime. Appellant’s reliance
on Commonwealth v. Queen, 639 A.2d 443 (Pa. 1994) and
Commonwealth v. Stevenson, 832 A.2d 1123 (Pa. Super. 2003), is
similarly inapposite. Queen and Stevenson addressed when police officers
may rely on a fellow officer’s information to provide reasonable suspicion for
an investigative detention. In this case, as discussed above, no such
investigative detention occurred until the police officers viewed the bulge in
Appellant’s pocket. Prior to that time, the interaction between Appellant and
the police officers was a mere encounter.
Once Officer Palma viewed the bulge in Appellant’s pocket, he had
reasonable suspicion to perform an investigative detention of Appellant and
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perform a protective frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
Commonwealth v. Hall, 929 A.2d 1202, 1207 (Pa. Super. 2007), citing
Commonwealth v. Stevenson, 894 A.2d 759, 769 (Pa. Super. 2006)
(“When a police officer observes a concealed weapon upon a person in the
public sphere, an investigatory stop is a reasonable response.”);
Commonwealth v. E.M., 735 A.2d 654, 660 (Pa. 1999), citing
Commonwealth v. Hicks, 253 A.2d 276, 279 (Pa. 1969) (officer had
probable cause to frisk individual for weapons upon observing bulge that he
believed to be a firearm); Commonwealth v. Jackson, 519 A.2d 427, 431
(Pa. Super. 1986), citing Commonwealth v. Carter, 483 A.2d 495, 497
(Pa. Super. 1984) (police had reasonable suspicion for frisk when they
observed “presence of suspicious bulges in a suspect’s clothing”). Therefore,
the entire interaction between the police officers and Appellant was lawful.
Accordingly, the suppression court properly denied Appellant’s suppression
motion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2015
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Com. v. Fisher, C.
Combined Opinion