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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVON L. SMITH,
Appellant No. 1388 WDA 2015
Appeal from the Judgment of Sentence Entered July 24, 2015
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002611-2013
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2016
Appellant, Davon L. Smith, appeals from the judgment of sentence of
5½ to 11 years’ incarceration, imposed after he was convicted of two
violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6127. Appellant
solely challenges the trial court’s denial of his pretrial motion to suppress the
gun found in his possession after he was stopped and frisked by police.
After careful review, we affirm.
In November of 2013, Appellant was arrested and charged with
possession of a firearm by a person prohibited, 18 Pa.C.S. § 6105(a)(1), and
carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). Prior to his
trial, Appellant filed a motion to suppress the gun recovered by police after
they stopped and frisked him. A suppression hearing was conducted on
October 14, 2014, after which the court denied Appellant’s motion and his
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case proceeded to a jury trial. On May 1, 2015, the jury convicted Appellant
of both firearm offenses. On July 24, 2015, he was sentenced to the term of
imprisonment stated above.
Appellant filed a timely notice of appeal, and also timely complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Herein, he presents one question for our review:
1. Whether the [t]rial [c]ourt erred by denying Appellant’s
[m]otion to [s]uppress where the evidence tended to show that
the testimony of Patrolman Miksich was not credible in relation
to the [c]ourt’s justification for the Terry [s]top, namely that the
patrolman had seen a gun[?]
Appellant’s Brief at 4.
It is well-settled that,
[o]ur 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.
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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) (citation omitted)).
Before addressing Appellant’s argument, we set forth the suppression
court’s summary of the evidence presented at the suppression hearing, as
follows:
On November 23, 2013, at 3:00 a.m., Officer Stephen
Miksich and Officer Vasil were dispatched to the 25th Street and
4th Avenue area of Altoona regarding a complaint of four white
males attempting to break into vehicles. Officer Miksich was
familiar with this area as he had responded to crimes of violence
in that area several times. The officers patrolled 20th Street and
4th Avenue looking for anyone on foot after the caller reported
that he had chased the suspect[s] to that area. Officer Miksich
approached a person in the area who had a hood up; this person
was later recognized to be [Appellant]….[1] [Appellant] is a black
male.
Officer Miksich attempted to engage [Appellant] in
conversation based on their “good rapport.”[2] [Appellant] put
his head down and placed his hand into his right pocket and
walked away;[3] when [Appellant] removed his hand from his
pocket, Officer Miksich observed the butt of a handgun from his
position approximately five feet away. Officer Miksich was aware
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1
Officer Miksich testified that he previously knew Appellant, who went by
the nickname, “Flip,” and that “normally [Appellant would] stop and talk to
both [Officer Vasil] and [Officer Miksich] anytime [they saw] him….” N.T.
Hearing, 10/14/14, at 6. Officer Miksich stated that the officers had “a
pretty good rapport with [Appellant].” Id.
2
Specifically, Officer Miksich testified that when he exited the police vehicle,
he said to Appellant, “hey, Flip, what’s going on?” N.T. Hearing at 6.
3
At that point, Officer Miksich stated, “Flip, what are you doing?” N.T.
Hearing at 6. Appellant then removed his hand from his pocket. Id.
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of [Appellant’s] criminal history which prohibited [Appellant]
from possessing a firearm.
The officers detained [Appellant by grasping his hands] …,
conducted a pat-down search, and retrieved a loaded Smith and
Wesson 380 handgun.
Suppression Court Opinion (SCO), 12/1/14, at 1-2 (citations to the record
omitted).
Based on this evidence, the suppression court first concluded that “the
officers’ contact with [Appellant] began as a voluntary encounter and
evolved to a Terry[4] stop and frisk based on the attendant facts.” Id. at 3.
In explaining its determination that the interaction began as a mere
encounter, the court noted the following facts:
Officer Miksich testified that both officers had a “pretty good
rapport” with [Appellant] and [Appellant] would voluntarily
speak to them anytime [Appellant] saw them. Based on the
totality of the circumstances, including [Appellant’s] prior
cooperation with the officers, neither the officers’ approach in a
marked unit nor Officer Miksich’s questions to [Appellant] of
“what’s going on?” and “what are you doing?” had escalated the
contact to that of a Terry stop.
Id. at 3-4 (citations to the record omitted).
The court did not go on to expressly state at what point the encounter
became a ‘Terry stop,’ i.e., a detention “for investigative purposes” that
must be supported by “a reasonable suspicion that criminal activity is afoot.”
Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citation
omitted). However, we conclude that Appellant was detained when the
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4
Terry v. Ohio, 392 U.S. 1 (1968).
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officers grasped his hands after Officer Miksich observed the weapon in
Appellant’s pocket. See N.T. Hearing at 6-7 (Officer Miksich’s testifying that
after he believed he saw “the butt of a firearm or a handgun,” he “told
[Officer] Vasil that [he] believe[d] … [they] were able to detain [Appellant’s]
hands, and at that time [Officer Miksich] retrieved … a black Smith and
Wesson handgun”). Clearly, the officers’ grabbing Appellant’s hands
“carrie[d] an official compulsion to stop and respond,” thus constituting an
investigative detention. Commonwealth v. DeHart, 745 A.2d 633, 636
(Pa. Super. 2000).
In regard to whether the officers had reasonable suspicion to justify
the Terry stop of Appellant, the suppression court first acknowledged that
Appellant’s “act of walking away from Officer Miksich with his hand in his
right jacket pocket by itself cannot demonstrate that criminal activity was
afoot.” SCO at 4 (citing Commonwealth v. Reppert, 814 A.2d 1196, 1206
(Pa. Super. 2002) (“A police officer's observation of a citizen's nervous
demeanor and furtive movements, without more, establishes nothing more
than a ‘hunch,’ employing speculation about the citizen's motive in the place
of fact.”)). However, the court went on to conclude that,
Officer Miksich possessed reasonable suspicion of criminal
activity after he observed a handgun in [Appellant’s] pocket and
knew that [Appellant] was prohibited from possessing a firearm.
Although Officer Miksich’s report is inadequate in failing to note
the observation of a gun, the [c]ourt finds his testimony
credible. Therefore, Officer Miksich’s observation[,] combined
with the knowledge that [Appellant’s] prior criminal convictions
prohibited him from possessing a firearm[,] provided the
requisite level of suspicion to justify the Terry stop.
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Id. at 4 (citations to the record omitted).
On appeal, Appellant initially presents a rather confusing challenge to
the court’s determination that his interaction with the officers only escalated
into an investigative detention after Officer Miksich observed the gun in
Appellant’s pocket. Essentially, Appellant relies on his own testimony at the
suppression hearing to assert that the officers were in the midst of patting
him down before the gun was visible and, thus, their Terry stop was not
supported by reasonable suspicion. See Appellant’s Brief at 16-17; see
also N.T. Hearing at 19-21 (Appellant’s testifying about how the stop and
frisk occurred). Additionally, Appellant argues that the suppression court
should have wholly disbelieved Officer Miksich’s testimony that he observed
a gun in Appellant’s pocket because the officer failed to mention this fact in
his Incident Report.
Both of Appellant’s arguments ask this Court to overturn credibility
determinations by the suppression court, which we cannot do. Clearly, the
court heard Officer Miksich’s version of the incident, as well as Appellant’s
differing account, and chose to believe Officer Miksich. The court was also
well aware that Officer Miksich did not include, in his Incident Report, the
fact that he observed a gun in Appellant’s pocket. Indeed, the court asked
the officer why he omitted that fact, and the officer replied, “I don’t have an
answer for that.” N.T. Hearing at 16. It is apparent from the record that
the suppression court considered Officer Miksich’s failure in this regard, yet
nevertheless chose to credit his testimony regarding the encounter with
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Appellant, including that the officer observed a gun prior to detaining
Appellant. It was within the sole province of the court to make these
credibility determinations. See Commonwealth v. Elmobdy, 823 A.2d
180, 183 (Pa. Super. 2003) (“It is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and the weight
to be given their testimony.”) (citation omitted). Based on Officer Miksich’s
testimony, we ascertain no legal error in the suppression court’s conclusion
that the officer possessed reasonable suspicion to conduct a Terry stop and
frisk of Appellant.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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