J-S60033-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHAKEEM RICE, :
:
Appellant : No. 3352 EDA 2015
Appeal from the Judgment of Sentence Entered October 29, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0003870-2015
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 19, 2016
Shakeem Rice (Appellant) appeals from the October 29, 2015
judgment of sentence of 11 ½ to 23 months of incarceration and three years
of probation imposed following his convictions for carrying a firearm without
a license, carrying a firearm on public streets of Philadelphia, and possession
of a firearm by a person not to possess. On appeal, Appellant challenges the
denial of his pre-trial suppression motion. After careful review, we affirm.
The trial court offered the following factual and procedural history of
the case.
The evidence established that on March 28, 2015, at
approximately 11:55 a.m., Philadelphia Police Officer [Jonathan]
Sweeney and an unidentified partner were in full uniform, on
foot patrol on the 2100 block of S. Cemetery Road because of a
recent spike in residential daytime burglaries when they
observed three males loitering around a corner business that
Officer Sweeney knew was closed for the season. The three men
turned their heads toward the officers and began walking. As
*Retired Senior Judge assigned to the Superior Court.
J-S60033-16
they were walking toward them, Officer Sweeney observed
[Appellant] adjust an object at his waist, right below his belt
buckle. Officer Sweeney stopped the three males and asked for
identification. In order to expedite the encounter, Officer
Sweeney flagged a patrol car to check the validity of the
identifications the men gave him. As he looked back, he noticed
[Appellant] adjust the object in his waistband again.
Officer Sweeney further testified that one of the males
(later identified as Azer (ph)) would not look at the officers; he
only stared at the ground. The other male (not identified by
name) seemed very nervous and was “swaying back and forth.”
At this time, Officer Sweeney ordered all three males to place
their hands on the fence and he frisked them. Officer Sweeney
felt the barrel of a gun in the area where he observed
[Appellant] adjusting something. Officer Sweeney pulled a .22
caliber H&R revolver gun from [Appellant’s] waist area and he
was arrested. [Appellant] did not have a license to carry a gun.
[Appellant] filed a Motion to Suppress which was heard
and denied by the Honorable Vincent N. Melchiorre on August
27, 2015. A waiver trial immediately followed and [Appellant]
was found guilty of all charges. [Appellant] filed a notice of
appeal to [this Court]. Following receipt of the notes of
testimony, [Appellant] was ordered to file a Statement of
Matters Complained of on Appeal pursuant to Pa.R.A.P. Rule
1925(b). A Statement of Matters Complained of on Appeal was
filed on January 4, 201[6].
Trial Court Opinion, 1/29/2016, at 1-3 (footnotes and citations omitted).
Appellant presents one issue for this Court’s review:
Did the lower court err in denying [A]ppellant’s motion to
suppress physical evidence as the officer who stopped, frisked,
and arrested [A]ppellant merely saw [A]ppellant standing on a
public sidewalk and make a motion with his hands at his
waistband and, thus, did not possess the requisite reasonable
suspicion that [A]ppellant was involved in criminal activity to
justify the stop?
Appellant’s Brief at 3 (trial court answer omitted).
-2-
J-S60033-16
We consider Appellant’s question mindful of the following.
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 court[]
below are subject to our plenary review.
Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)). “Moreover,
appellate courts are limited to reviewing only the evidence presented at the
suppression hearing when examining a ruling on a pre-trial motion to
suppress.” Commonwealth v. Stilo, 138 A.3d 33, 35–36 (Pa. Super.
2016).
The following principles guide our review if this matter.
Interaction between citizens and police officers, under
search and seizure law, is varied and requires different levels of
justification depending upon the nature of the interaction and
whether or not the citizen is detained. The three levels of
interaction are mere encounter, investigative detention, and
custodial detention. A mere encounter can be any formal or
informal interaction between an officer and a citizen, but will
normally be an inquiry by the officer of a citizen. A mere
encounter does not carry any official compulsion to stop or
-3-
J-S60033-16
respond to police, and as a result, does not need to be supported
by any level of suspicion. In contrast, an investigative detention
carries an official compulsion to stop and respond. The
detention is temporary, but it must be supported by specific and
articulable facts creating a reasonable suspicion that the suspect
is engaged in criminal activity. The test for reasonable suspicion
is an objective one: … whether the officer’s action was justified
at its inception, and whether it was reasonably related in scope
to the circumstances which justified the interference in the first
place. Regarding the stop, a police officer may, short of an
arrest, conduct an investigative detention if he has a reasonable
suspicion, based upon specific and articulable facts, that
criminality is afoot. The assessment of reasonable suspicion, like
that applicable to the determination of probable cause, requires
an evaluation of the totality of the circumstances, with a lesser
showing needed to demonstrate reasonable suspicion in terms of
both quantity or content and reliability. Finally, an arrest or
custodial detention must be supported by probable cause.
To determine if an interaction rises to the level of an
investigative detention, i.e., a Terry[1] stop, the court must
examine all the circumstances and determine whether police
action would have made a reasonable person believe he was not
free to go and was subject to the officer’s orders. To guide this
crucial analysis, the United States Supreme Court has devised an
objective test entailing whether, in view of all surrounding
circumstances, a reasonable person would believe 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. No single factor should control this determination,
and courts must examine the totality of the circumstances when
reaching a conclusion as to whether a seizure occurred.
Commonwealth v. Guzman, 44 A.3d 688, 692-93 (Pa. Super. 2012)
(internal citations and quotation marks omitted).
1
Terry v. Ohio, 392 U.S. 1 (1968).
-4-
J-S60033-16
Appellant first argues that his interaction with the police was, from the
start, an investigative detention: “[t]he uniformed police officer subjected
[A]ppellant to an investigative detention and subsequent [Terry] frisk, when
he ordered him to stop and asked him for identification. As the officer did
not have the requisite reasonable suspicion to support the initial stop, the
frisk, and subsequent arrest, was [sic] also illegal.” Appellant’s Brief at 10.
The trial court2 determined that Officer Sweeney’s request for
Appellant’s identification was a mere encounter. Specifically, in finding the
police were allowed to ask for identification without the encounter becoming
an investigative detention, the court found that Officer Sweeney’s request
for identification was not accompanied with a “compulsion for these males to
stay and give identification[.]” Trial Court Opinion, 1/29/2016, at 5-6.
We disagree with the trial court’s legal conclusion. Specifically, we find
the following excerpts from the suppression hearing pertinent to our
disposition.
[The Commonwealth:] What did you do after you observed this?
[Officer Sweeney:] After I observed him adjust something below
his belt buckle, we stopped him for investigation of the daytime
burglaries. At that point we pulled a car over to run the names
faster, and then when the car came, I drew my attention to their
car. I looked back, and he adjusted something below his belt
buckle again.
2
Because the judge who presided over Appellant’s suppression hearing and
waiver trial was no longer a sitting judge, the Rule 1925(a) opinion before us
was authored by the Honorable Jeffrey P. Minehart.
-5-
J-S60033-16
N.T., 8/27/2015, at 11.
[Defense Counsel:] You actually ordered all three people to
stop, correct?
[Officer Sweeney:] Yes.
[Defense Counsel:] You were holding them until you could run
the IDs, correct?
[Officer Sweeney:] Yes.
Id. at 21.
Despite the protestations of the Commonwealth and trial court to the
contrary, we find no evidence to support the court’s finding that “[t]he
request for identification was not accompanied by physical restraint,
manifestation of authority, or a mandate to comply.” Trial Court Opinion,
1/29/2016, at 6. The suppression hearing transcript does not support the
notion that compliance with the request for identification was voluntary,
especially considering Officer Sweeney answered in the affirmative when
questioned if he ordered Appellant and his cohorts to stop. Notably, Officer
Sweeney testified Appellant was stopped for an “investigation.” The
Commonwealth did not elicit additional context for the officer’s answers, and
we do not accept an invitation to presume what the officer intended to
communicate at the hearing. Under these circumstances, we do not find
that Officer Sweeney’s initial encounter with Appellant was a mere
encounter. Rather, it was an investigative detention.
-6-
J-S60033-16
However, our analysis does not end there because we may affirm on any
basis. See Commonwealth v. Clouser, 998 A.2d 656, 661, n.3 (Pa.
Super. 2010) (“It is well-settled that this Court may affirm on any basis”).
Therefore, we now review the record to determine if Officer Sweeney
possessed the requisite reasonable suspicion needed to stop Appellant
lawfully.
[A]n “investigative detention,” by implication, carries an official
compulsion to stop and respond, but the detention is temporary,
unless it results in the formation of probable cause for arrest,
and does not possess the coercive conditions consistent with a
formal arrest. Since this interaction has elements of official
compulsion it requires “reasonable suspicion” of unlawful
activity.
Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000).
An investigative detention, unlike a mere encounter, constitutes
a seizure of a person and thus activates the protections of Article
1, Section 8 of the Pennsylvania Constitution. To institute an
investigative detention, an officer must have at least a
reasonable suspicion that criminal activity is afoot. Reasonable
suspicion requires a finding that based on the available facts, a
person of reasonable caution would believe the intrusion was
appropriate.
Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003)
(some citations omitted).
After a thorough review, we find Officer Sweeney possessed
reasonable suspicion to stop Appellant. As testified by Officer Sweeney, he
and his partner were on foot patrol in a high-crime area due to an increase
in daytime burglaries in the neighborhood. N.T., 8/27/2016, at 7. Seeing
-7-
J-S60033-16
Appellant and two other individuals loitering outside a business the officer
knew was closed for the season, he and his partner began to walk towards
them. Id. at 8-10. The three men noticed the officers and began walking.
Id. at 10. While walking, Officer Sweeney observed Appellant adjust
“something below his belt buckle.” Id. at 11. Aware based on his police
training that firearms are often concealed in this area,3 Officer Sweeney
stopped the three men to inquire further. Id.
We find the totality of the circumstances and the facts as relayed by
Officer Sweeney provided him the requisite reasonable suspicion necessary
to initiate a stop. See Commonwealth v. Zhahir, 751 A.2d 1153, 1157
(Pa. 2000) (“[Illinois v. Wardlow, 120 S.Ct. 673, 676, (2000), explained]
that an area of expected criminal activity is a relevant contextual
consideration, as is nervous or evasive behavior, in determining reasonable
suspicion[.] [In Zahir, police were able to corroborate an anonymous call
received when the officer] was confronted with an individual whose actions
appeared to be consistent with retrieval of a weapon from his pocket. In
light of the totality of this information, the officers were justified in
conducting an investigative detention.”). See also Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (some citations omitted)
(“[R]easonable suspicion is based upon an objective standard, not subjective
3
Officer Sweeney testified that “[i]n defense tactics, we were trained to
always watch the hands and that weapons are commonly placed in the
waistband area.” N.T., 8/27/2015, at 19.
-8-
J-S60033-16
intent. As the United States Supreme Court noted in Maryland v. Macon,
[472 U.S. 463, (1985)], “Whether a Fourth Amendment violation has
occurred ‘turns on an objective assessment of the officer’s actions in light of
the facts and circumstances confronting him at the time,’ Scott v. United
States, 436 U.S. 128, 136, [] (1978), and not on the officer’s actual state of
mind at the time the challenged action was taken.”).
Having determined that Officer Sweeney’s initial encounter of
Appellant was lawful, we consider Appellant’s remaining argument
concerning the legitimacy of the subsequent Terry frisk. Appellant claims
that Officer Sweeney’s “stop and frisk of [A]ppellant was unconstitutional as
the officer merely saw [A]ppellant standing on a public sidewalk in the
middle of the day and make a movement towards his waistband and, thus,
did not observe unusual conduct which could lead [him] to reasonably
conclude that criminal activity was afoot.” Appellant’s Brief at 12.
We begin with an examination of the relevant legal principles.
If, during the course of a valid investigatory stop, an
officer observes unusual and suspicious conduct on the part of
the individual which leads him to reasonably believe that the
suspect may be armed and dangerous, the officer may conduct a
pat-down of the suspect’s outer garments for weapons. In order
to justify a frisk under Terry, the officer must be able to point to
particular facts from which he reasonably inferred that the
individual was armed and dangerous. Such a frisk, permitted
without a warrant and on the basis of reasonable suspicion less
than probable cause, must always be strictly limited to that
which is necessary for the discovery of weapons which might be
used to harm the officer or others nearby.
-9-
J-S60033-16
Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (internal citations
and quotation marks omitted).
In concluding Officer Sweeney’s Terry stop and frisk was lawful, we
find Appellant’s argument ignores the applicable standards:
In order to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be considered.
… 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. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008) (en
banc) (citations and quotation marks omitted). Here, Appellant’s continued
adjustment of his waistband, in conjunction with the behaviors of his cohorts
and the Officer’s training and knowledge that weapons are often concealed
in waistbands, established a reasonable suspicion that Appellant might be
carrying a weapon. See Foglia, 979 A.2d at 361-62 (after encountering the
defendant, the officer noticed that “[Foglia] touched his waist area and sat
down on a stoop behind some females. The police officer was aware, based
upon his experience with armed suspects, that weapons are often concealed
in a person’s waistband. Thus, Officer Scott had more than ample facts at his
disposal to believe that [Foglia] was armed with a gun. … [Foglia] displayed
hand movements consistent with custody of a weapon in his waistband,
where such items are commonly hidden. As this latter action occurred
before the patdown, it can be used to support the officer’s actions.”).
- 10 -
J-S60033-16
Because Officer Sweeney was justified in performing a Terry frisk, the
suppression court properly denied Appellant’s motion to suppress the
firearm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
- 11 -