J-A35001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.W.-B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.W.-B.
No. 1263 WDA 2013
Appeal from the Dispositional Order Entered July 22, 2013
In the Court of Common Pleas of Allegheny County
Juvenile Division at No(s): 85269-A, 0854-10
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 20, 2016
Appellant, A.W.-B., appeals from the July 22, 2013 disposition of the
juvenile court, imposed after the court adjudicated him delinquent of firearm
offenses. Appellant challenges the juvenile court’s order denying
suppression of the seized firearm, as well as the weight of the evidence
supporting his delinquent adjudication. After careful review, we reverse on
suppression grounds.
On the evening of December 10, 2012, Pittsburgh Police Officer Desaro
(Desaro), and his partner, Pittsburgh Police Officer Hoyson (Hoyson),
responded to multiple, anonymous reports of gunshots fired near the 1000
block of Brushton Avenue, in the Homewood neighborhood in Pittsburgh.
These reports, relayed from police dispatch to Desaro and Hoyson, described
the shooters as two black males, one wearing a red hoodie, and the other
wearing a black jacket with red or orange stripes on the shoulders. Once
Desaro and Hoyson arrived on the scene, they entered a building at 1040
Brushton Avenue and proceeded to the second floor where they heard
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Pittsburgh Police Officer Kosko’s (Kosko) voice. Once there, Desaro and
Hoyson observed that Kosko had already detained two individuals who
matched the descriptions relayed by dispatch, Deon Turner (Turner) and
Appellant. When Desaro and Hoyson arrived, Kosko was patting-down
Turner, who was wearing a black jacket with orange and red stripes on the
shoulders. That pat-down uncovered a firearm. Desaro subsequently
conducted a pat-down of Appellant but found nothing.
During this time, it was discovered by the officers that Appellant was a
minor who lived in the building where he was detained. Based on this
information, Hoyson decided to notify Appellant’s mother. When Hoyson
made contact with Appellant’s mother, he asked for her permission to search
the apartment for firearms. Appellant’s mother directed Hoyson to contact
the apartment’s lessee, Shanelle, who consented to a search of Appellant’s
bedroom. Subsequently, Hoyson discovered a firearm with an altered serial
number in the closet of Appellant’s room.
Appellant was charged as a juvenile with possession of a firearm by a
minor, 18 Pa.C.S. § 6110.1, and possession of a firearm with an altered
manufacturer’s number, 18 Pa.C.S. § 6110.2. On January, 19, 2013,
Appellant filed a motion to suppress the seized firearm before the Honorable
Judge Dwayne Woodruff in the Juvenile Section of the Family Division of the
Allegheny County Court of Common Pleas (“trial court”). The trial court held
a hearing to decide that motion on June 17, 2013. At that hearing, the court
heard testimony from Desaro and Hoyson; however, Kosko did not testify.
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Appellant’s suppression motion was denied at the end of that hearing, and
the court immediately proceeded to trial, where Appellant was adjudicated
delinquent of both offenses. Appellant filed a motion to reconsider the
denial of his suppression motion the next day, which was later denied on
July 1, 2013. On July 9, 2013, disposition was deferred until July 31, 2013;
however, Appellant was actually committed to a juvenile facility on July 22,
2013, and the July 31, 2013 hearing was never held. Appellant filed a
timely notice of appeal on August 7, 2013.1
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement on
November 30, 2013. The trial court issued an unresponsive Rule 1925(a)
opinion on August 5, 2015.2 Appellant now presents the following questions
for our review:
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1
The actual date of disposition in this case is not completely clear.
However, the Commonwealth advises that Appellant’s notice of appeal was
timely based on the July 22, 2013 commitment date. See Commonwealth’s
Brief, at 3 n.1; see also Delinquency Commitment and Transportation
Order, 7/22/13. Our own review of the record indicates that the earliest
possible date of disposition in this case was July 9, 2013. A hearing was
held on that date, but the transcript from that hearing does not indicate that
a disposition was actually entered. What is clear from the record is that
disposition had not been entered when that hearing began. Given these
observations, we can conclude that Appellant’s appeal was timely, as it was
filed within 30 days of both the July 9, 2013 hearing and the July 22, 2013
commitment date.
2
Despite taking over 600 days to issue an opinion in this case, the trial court
failed to address the claims raised by Appellant in his Rule 1925(b)
statement. Judge Woodruff’s opinion begins by reciting the procedural
(Footnote Continued Next Page)
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I. Did the trial court err when it determined Officer Kosko
possessed reasonable suspicion to detain A.W.B. following
an a[]nonymous tip, despite Officer Kosko[’s] not
testifying, or even being present at the suppression
hearing?
II. Was the verdict rendered [] against the weight of the
evidence presented, where the finding of a firearm in
A.W.B.’s bedroom that he shares with two other people[]
cannot support A.W.B.’s adjudications relating to
possession of a firearm?
Appellant’s Brief, at 6 (unnecessary capitalization omitted).
Notably, our review of this case is somewhat hindered by the trial
court’s failure to file a responsive opinion. However, neither party is
requesting that we remand for the production of a new, responsive opinion
Furthermore, the trial court placed the reasons for denying Appellant’s
suppression on the record at the suppression hearing. Given this existing
record, and the parties’ briefs, we conclude that we have adequate
information before us to render a decision.
Appellant’s first claim concerns the trial court’s denial of his motion to
suppress the seized firearm as the fruit of an unlawful detention conducted
by Kosko. Specifically, Appellant contends that the Commonwealth failed to
demonstrate that Kosko possessed reasonable suspicion to detain Appellant.
One aspect of Appellant’s argument is his contention that the
Commonwealth failed to meet its burden to demonstrate reasonable
_______________________
(Footnote Continued)
history of this case. However, the subsequent analysis provided in the
opinion does not relate to Appellant’s case at all.
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suspicion based on the fact that Officer Kosko never testified at the
suppression hearing.
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. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court's factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court's legal conclusions are erroneous.
Where … the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court's
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)
(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.
2012)).
Here, Desaro and Hoyson testified at the suppression hearing held
prior to trial on June 17, 2013. However, Kosko did not testify, and there is
nothing in the record explaining or excusing his absence. Based on his
absence, Appellant’s trial counsel argued that there was simply inadequate
evidence to demonstrate whether Kosko possessed reasonable suspicion
when he detained Appellant, a position that Appellant currently maintains on
appeal.
[I]t is well established that a police officer may conduct a brief
investigative stop of an individual, if the officer observes unusual
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conduct which leads him to reasonably conclude, in light of his
experience, that criminal activity may be afoot.
Commonwealth v. Preacher, 827 A.2d 1235, 1238 (Pa. Super.
2003). “An investigatory stop subjects a person to a stop and a
period of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of an arrest.
Such an investigatory stop is justified only if the detaining officer
can point to specific and articulable facts which, in conjunction
with rational inference derived from those facts, give rise to a
reasonable suspicion of criminal activity and therefore warrant
the intrusion.” Commonwealth v. E.M., 558 Pa. 16, 735 A.2d
654, 659 (1999) (citations omitted).
Commonwealth v. Wiley, 858 A.2d 1191, 1194 (Pa. Super. 2004)
(emphasis added).
The trial court based its decision to deny suppression on the following
facts. First, Desaro and Hoyson testified that they responded together to
the 1000 block of Brushton Avenue due to multiple, anonymous calls
reporting the shooting. N.T., 6/17/13, at 6, 19, 36. Second, Hoyson
testified that when he arrived at the scene with Desaro, he noticed that no
one was outside, which was “odd for that area.” Id. at 20, 36-37.3 Third,
Desaro and Hoyson found that Kosko had detained Appellant and Turner
near the shooting, and that Appellant and Turner were wearing clothes that
matched what was reported by the anonymous calls. Id. at 9, 21, 37.
Based on these circumstances, the trial court determined that police had
“enough to have a pat-down[,]” i.e., that they had reasonable suspicion to
temporarily detain Appellant and Turner. Id. at 37.
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3
This fact, the Commonwealth argues, corroborates that there had recently
been a shooting.
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We conclude that the trial court’s factual findings are not supported by
the record. Simply put, Kosko did not testify and, as a result, the
Commonwealth did not establish that he had knowledge of any of the facts
testified to by Desaro and Hoyson when he detained Appellant and Turner.
Thus, the trial court simply did not have enough information before it to
reach the legal conclusion that Kosko, the detaining officer, had specific and
articulable facts upon which to reasonably conclude that Appellant and/or
Turner had been involved in criminal activity. Wiley, supra. Desaro and
Hoyson did not observe Kosko detain Appellant and Turner. Desaro and
Hoyson could not testify as to whether Kosko knew about the anonymous
tips regarding the shooting, the corresponding descriptions of the actors, or
the suspicious absence of people at the scene. Indeed, whether they could
testify to Kosko’s knowledge in that regard is irrelevant because they did not
do so. Moreover, due to Kosko’s absence, Appellant was unable to question
him as to whether he was aware of any of these facts.
It is true that “the investigating officer need not have personal
knowledge of the facts that support” reasonable suspicion or probable cause
for a detention. Commonwealth v. Korenkiewicz, 743 A.2d 958, 966 (Pa.
Super. 1999) (en banc). He or she “may reasonably rely upon radio
transmissions so long as the officer issuing the information has received
reasonably trustworthy information sufficient to warrant a man of reasonable
caution in believing that the suspect has committed or is committing an
offense.” Id. at 966-67. However, in this case, there was no evidence that
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Kosko had received the same information from dispatch as heard by Desaro
and Hoyson. There is also no evidence that Kosko was aware of Hoyson’s
observation regarding the suspicious lack of people at the scene of the
reported shooting.
We acknowledge that there is no bright-line rule holding that the
absence of a detaining or arresting officer’s testimony, per se, prevents the
Commonwealth from meeting its burden at a suppression hearing. Indeed,
in some circumstances, a detaining or arresting officer’s testimony will be
largely irrelevant to certain suppression issues.4 It may even be possible
that the Commonwealth can sustain its burden without such critical
testimony in circumstances where the events immediately surrounding an
arrest/detention itself are at issue. However, the circumstances of the
instant case do not present us with adequate reasons to overlook Kosko’s
absence, because no one else witnessed Appellant’s initial detention, and
because no one testified regarding what information was conveyed to Kosko
before he detained Appellant.
We therefore conclude that the trial court erred when it denied
Appellant’s suppression motion. The court’s legal conclusions were based on
facts that were not adequately supported by the record. As the firearm at
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4
For example, such testimony would appear unnecessary when litigating the
validity of a warrant, or when a motion to suppress is based upon events
that occur after a defendant is lawfully taken into custody.
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issue was discovered pursuant to a consensual search that arose directly out
of that ostensibly illegal detention, and because the Commonwealth made no
attempt to demonstrate a break in the causal chain between the illegal
detention and the seizure of the evidence, the firearm should have been
suppressed. See Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa.
2000) (“Where … a consensual search has been preceded by an unlawful
seizure, the exclusionary rule requires suppression of the evidence obtained
absent a demonstration by the government … of a sufficient break in the
causal chain between the illegality and the seizure of evidence….”) Because
we conclude that the trial court erred when it failed to suppress the seized
evidence, we reverse the order denying Appellant’s suppression motion and
remand for further proceedings. Accordingly, Appellant’s weight-of-the-
evidence claim is rendered moot by our decision.
Dispositional order vacated. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2016
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