J-S17038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICAH ANTHONY GOVENS,
Appellant No. 1673 EDA 2016
Appeal from the Judgment of Sentence of April 27, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000147-2016
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICAH ANTHONY GOVENS,
Appellant No. 1683 EDA 2016
Appeal from the Judgment of Sentence of April 27, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002608-2015
BEFORE: OLSON, STABILE and MUSMANNO, JJ.
DISSENTING MEMORANDUM BY OLSON, J.: FILED MAY 22, 2017
As I believe that the suppression court properly denied Appellant’s
motion to suppress, I must respectfully dissent.
I agree with the learned Majority that, at the time Officer Kevin
Schiller and Officer Roosevelt Turner stopped Appellant, Appellant was
subject to an investigative detention. I also agree that the law is clear that
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police officers may conduct an investigative detention only if they have
reasonable suspicion that criminal activity is afoot. Commonwealth v.
Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc) (“A police officer
may detain an individual in order to conduct an investigation if the officer
reasonably suspects that the individual is engaging in criminal conduct.”)
Thus, the issue in this case is whether Officer German Sabillon possessed
reasonable suspicion that Appellant was engaged in criminal conduct when
he directed his fellow officers to stop Appellant. I conclude that he did,
therefore, I believe that Appellant’s detention was lawful and that the
evidence seized upon the search of Appellant’s person should not be
suppressed.
As is well established:
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 the
examination of only those facts that clearly indicate criminal
conduct. Rather, a combination of innocent facts, when taken
together, may warrant further investigation by the police officer.
Id. (citations and internal quotes omitted).
In this case, the evidence adduced at the suppression hearing
established the following. Officer Sabillon, a patrol officer for the City of
Chester Police Department for 11 years, received a call on January 10, 2015
at approximately 1:34 a.m. dispatching him to the Gold Room, a bar located
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in Chester City. N.T., 8/25/15, at 7-8. The dispatch indicated that a large
group of individuals was fighting in the street in front of the bar. Id. at 10.
The Gold Room is located near a high-crime area. Id. at 12. Officer
Sabillon indicated that officers are to be in the area of the Gold Room on
Fridays, Saturdays and sometimes Sundays because of the large crowds.
Id. at 10. According to Officer Sabillon, his department typically patrols the
location at the bar’s closing time “[b]ecause of the problems.” Id. at 13.
The officers usually block the street that leads to the bar to get everyone out
of the area as quickly as possible. Id. Officer Sabillon responded to the
Gold Room on many occasions because of various disturbances, including
fights and assaults. Id. at 11. In fact, just one week before this incident,
Officer Sabillon encountered another person with a gun outside the bar. Id.
In his personal experience, Officer Sabillon conducted approximately 20
arrests inside and outside the Gold Room since it opened. Id. at 11-12.
Those arrests included firearm violations, violent offenses and drug offenses.
Id. at 12.
On the night in question, the entire shift (approximately eight officers)
and one officer from a neighboring jurisdiction were present at the Gold
Room location. Id. at 13. When Officer Sabillon arrived, there was a crowd
of approximately 50 people gathered outside the bar. Id. at 13-14. A group
of females was fighting in the middle of the street. Id. at 14. The officers
were directing the crowd to disperse. Id. at 45. Although the officers were
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yelling to the crowd to disperse, Appellant refused to move from the front of
the bar. Id.
Officer Sabillon was in the area near the front of the bar when a
female, who was getting into her car, called him over. Id. at 14. “As [he]
approached, [the woman] said the man right there, kind of like pointed and
gave [Officer Sabillon] a general description, has a gun. He put a gun into
his pocket, she said.” Id. The man at which the woman pointed was
Appellant. Id. at 15. Officer Sabillon testified that lights from the bar made
the area bright; therefore, he could clearly see the woman when she talked
with him and Appellant after the woman pointed to him. Id. at 15-16. The
woman was calm when she spoke to the officer. Id. at 18. Officer Sabillon
was more willing to act on the tip provided by this woman since he had a
“person-to-person” encounter with her. Id. at 20. As he testified, “[i]n the
City of Chester, it’s rare for someone to get involved like that. They usually
call and don’t give their name but not a person-to-person . . . encounter, so
that kind of made me . . . act more towards the information given.” Id. At
all times that Officer Sabillon saw Appellant, Appellant’s hands were in his
coat pockets. Id. at 57. When asked whether the fact that Appellant had
his hands in his pockets at all times supported the tip from the woman,
Officer Sabillon testified “Possibly, yes.” Id. at 26. After speaking with the
woman, Officer Sabillon radioed to Officers Schiller and Turner and asked
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them to stop Appellant. Id. at 21. Once detained, Officer Sabillon found a
firearm in the right pocket of Appellant’s coat. Id. at 66.
Officer Sabillon testified that he acted upon the woman’s tip because
of the shootings and gun arrests from the area. Id. at 20. He was
concerned about the safety of the crowd and his fellow police officers,
especially since there were a lot of people, a fight was occurring, and alcohol
was involved. Id. at 20-21.
After considering these facts in a light most favorable to the
Commonwealth1, I believe that the totality of the circumstances establish
that Officer Sabillon had reasonable suspicion to believe that Appellant was
engaged in criminal conduct at the time he asked his fellow officers to detain
Appellant. Thus, the investigative detention of Appellant was constitutionally
sound and the seizure of the gun and drugs from his person was proper.
This case is almost on all-fours with Commonwealth v. Ranson, 103
A.3d 73 (Pa. Super. 2014), appeal denied, 103 A.3d 73 (Pa. 2015). In
Ranson, officers were working an approved off-duty detail at an after-hours
club in a high-crime area in Pittsburgh. Security was needed at the club as
there were prior incidents at the club, including fights, shootings and
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1
“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.” Commonwealth v. Jones, 988 A.2d
649, 654 (Pa. 2010), cert. denied, 131 S. Ct. 110 (2010).
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homicides. On the night in question, as the club was letting out at
approximately 3:30 a.m., a frequent patron of the club stopped one of the
officers and told him there was a male on the corner with a firearm. The
patron went on to describe the male as wearing a black hoodie, black jeans
and having a long beard. “The patron actually pointed the person out to
[the officer] on the corner.” Id. at 75. In light of this information, the
officer who received the tip, along with two other officers, approached
Ranson. As they did so, Ranson put his hands in his hoodie pocket and
started to walk away at which time he was commanded by the officers to
stop. Once Ranson eventually stopped, he removed his hands from the
hoodie pocket and the officers could see the imprint of a gun. The officers
searched Ranson and recovered a firearm from the front pocket of his hoodie
sweatshirt. Ranson sought to suppress the gun on the basis that the officers
lacked reasonable suspicion to detain him. The trial court denied the motion
and Ranson was convicted of various crimes, including firearms violations.
On appeal, this Court affirmed the trial court’s order denying the motion to
suppress.
Similar to the argument made in the case sub judice, Ranson argued
that the officers lacked reasonable suspicion that he was engaged in criminal
conduct at the time he was detained. Specifically, Ranson argued that the
tipster was purely anonymous as the officer did not know the tipster’s name.
As such, the tip could not be used to establish reasonable suspicion. In
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rejecting Ranson’s argument, this Court distinguished the various cases in
which an anonymous, vague tip was found to be insufficient to create a
reasonable suspicion of criminal activity, including Commonwealth v.
Hawkins, 692 A.2d 1068 (Pa. 1997) and Commonwealth v. Haywood,
756 A.2d 23 (Pa. Super. 2000), two of the cases upon which the learned
Majority relies. Instead, the Ranson Court found that the officer received
the tip in person from a patron at the club and that the tip was not vague
since the tipster not only described Ranson, but he pointed him out to the
officer. The Ranson Court found that “[t]aken together, the facts show that
Detective Curry, a veteran officer, had an opportunity to assess: (1) the
demeanor of the tipster; (2) the basis of the tipster’s knowledge; and, (3)
the tipster’s present ability to perceive [Ranson]. These facts give additional
credence to the tipster’s information.” Id. at 79. See also
Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009), appeal
denied 990 A.2d 730 (Pa. 2010) (“The situation here is distinguishable in
that the tip was made in person giving [the officer] an opportunity to
observe the witness’ demeanor and assess his credibility in light of this past
experience with investigating crimes. Such a tip must be given more weight
than a mere anonymous phone call . . .”.)
Like in Ranson and Williams, Officer Sabillon had the opportunity to
observe the tipster’s demeanor and assess her credibility in light of his 11
years of experience as a police officer. Officer Sabillon could clearly see the
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woman who provided the tip and noticed her calm demeanor. He noted the
lighting conditions and confirmed that the woman was able to perceive
Appellant as she was in close proximity to him. Additionally, Officer Sabillon
stated that he was more inclined to believe the woman as it was rare for
people in that community to get involved and provide in-person information
to the police. Thus, the tip given to Officer Sabillon was a legitimate factor
upon which the officer could rely in determining that there was reasonable
suspicion to stop Appellant.2
Moreover, just like in Ranson, there were additional facts that must
be considered in viewing the totality of the circumstances from the eyes of
Officer Sabillon. The Gold Room is located near a high-crime area and the
bar was the site of prior incidents, including firearm violations, violent crimes
and drug offenses. Since the Gold Room opened, Officer Sabillon personally
arrested approximately 20 individuals inside or outside the bar. In fact, just
one week prior to this incident, Officer Sabillon encountered another person
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2
The fact that the woman told Officer Sabillon that she saw Appellant put a
gun into his pocket is an even more compelling justification to order the stop
as the statement reveals that Appellant possessed a visible firearm at a bar
late at night in a high-crime area where a physical altercation was occurring.
Under these circumstances, Officer Sabillon had reasonable cause for
concern regarding the safety of the investigating officers and the departing
bar patrons. See Terry v. Ohio, 392 U.S. 1 (1968) (police officer may
search individual's outer clothing to discover weapons which might endanger
officer or others if officer observes unusual and suspicious conduct on the
part of the individual which leads him reasonably to conclude that criminal
activity may be afoot and that the individual may be armed and dangerous).
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outside of the Gold Room who had a gun. “Thus, there was a credible basis
from which the officers could infer that the people in and near the club had
weapons.” Ranson, 103 A.3d at 80. Like in Ranson, officers from the
Chester City Police Department, including Officer Sabillon, were assigned in
the past to patrol the area outside the Gold Room at closing time to make
sure things remained calm and peaceful. On the night in question, there
were approximately 50 people outside the bar and a group of women was
fighting. Nine police officers were trying to control the situation and
disperse the crowd by directing everyone to leave. Although told to
disperse, Appellant refused to leave and remained standing outside of the
bar. At all times that he was observed by Officer Sabillon, Appellant had his
hands in his coat pockets. Each of these factors, standing alone, may not be
sufficient to establish reasonable suspicion; however, taken in their totality,
they are sufficient to have reasonably led Officer Sabillon to believe that
criminal activity was afoot so as to justify the investigative detention of
Appellant. Thus, in considering the totality of the facts and circumstances,
and after applying our standard of review3, I must conclude that the trial
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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. . . . Where the
suppression court’s factual findings are supported by the record,
(Footnote Continued Next Page)
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court did not err in denying Appellant’s suppression motion. Hence, I must
respectfully dissent.
_______________________
(Footnote Continued)
we are bound by those findings and may reverse only if the
court’s legal conclusions are erroneous. 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.”
Ranson, 103 A.3d at 76, quoting Jones, 988 A.2d at 654 (citations,
quotations and ellipses omitted).
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