J-S25025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARVIN WALKER
Appellant No. 875 EDA 2015
Appeal from the Judgment of Sentence February 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002438-2012
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY RANSOM, J.: FILED JUNE 13, 2017
Appellant, Marvin Walker, appeals from the judgment of sentence of
six to twelve years of incarceration, imposed February 23, 2015, following a
bench trial resulting in his conviction for violations of the Uniform Firearms
Act. We affirm.1
We adopt the following statement of facts from the suppression court
opinion, which in turn is supported by the record. See Suppression Court
Opinion (SCO), 8/1/16, at 1-3.
On November 3, 2011, Police Officers Kyle Morris, Christopher Hyk,
and Kelly Robbins were on patrol in the 2700 block of North 8th Street in
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1
See 18 Pa.C.S. §§ 6105, 6106, and 6108 respectively. Appellant was also
charged with possession of marijuana, 35 P.S. § 780-113(a)(16), although
the charge was nolle prossed.
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Philadelphia, Pennsylvania, a high crime area with frequent drug sales.
Officer Morris is a narcotics officer with over seven years on the force.
Officer Morris observed Appellant transferring small objects in a “pinching”
motion to another individual, who gave Appellant money in exchange.
Believing this to be a drug sale, Officer Morris stopped the police car to
investigate. Officer Morris noticed Appellant had his hand on his waistband.
When Appellant looked up and noticed the officer’s approach, he began
to run away. Officer Morris yelled for Appellant to stop and proceeded to
chase Appellant for approximately three blocks. During the chase, Appellant
reached into his waistband and discarded a metal object. Appellant was
arrested by Officer Hyk. A search incident to arrest resulted in the recovery
of $429.00 and three bags of marijuana from Appellant’s person, and the
metal object, a discarded firearm, was recovered from the ground by Officer
Robbins.
Prior to trial, Appellant litigated a suppression motion, arguing that the
officers had not observed a crime and that the chase and subsequent search
were not supported by reasonable suspicion. Appellant argued that Officer
Morris, in a preliminary hearing, had stated that Appellant ran only after
being told to stop. However, at the suppression hearing, Officer Morris
testified consistently that Appellant had fled prior to being told to stop. The
suppression court denied Appellant’s motion.
The matter proceeded to a bench trial in September 2014. Appellant
was convicted of the above-mentioned charges. Appellant filed a motion
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seeking reconsideration of the verdict and the denial of the suppression
motion, which the court denied. In February 2015, the court sentenced
Appellant to an aggregate sentence of six to twelve years of incarceration.
On appeal, Appellant raises a single issue for our review, namely, that
the court erred in failing to grant his motion to suppress physical evidence.
See Appellant’s Brief at 4. Appellant argues that based on the totality of the
circumstances, the police lacked reasonable suspicion and probable cause to
search Appellant. See Appellant’s Brief at 9. He contends that as a result,
the physical evidence should have been suppressed as illegally obtained.
Id. at 12.
Our standard of review for an appeal denying a motion to suppress is
well settled.
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.
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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations
omitted).
Appellant contends that the search was not supported by reasonable
suspicion or probable cause. We note, initially, that
[t]here are three types of encounters between law enforcement
officials and private citizens. A “mere encounter” need not be
supported by any level of suspicion but carries no official
compulsion to stop or respond. An “investigative detention”
must be supported by reasonable suspicion and subjects the
suspect to a stop and a period of detention, but it does not have
the coercive conditions that would constitute an arrest. The
courts determine whether reasonable suspicion exists by
examining the totality of the circumstances. An arrest, or
“custodial detention,” must be supported by probable cause.
In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).
Here, the initial contact between Appellant and the police was a mere
encounter which need not be supported by any level of suspicion. See
Commonwealth v. Lyles, 97 A.3d 298, 303 (Pa. 2014) (noting that a
seizure does not occur where officers merely approach a person in public
and question the individual or request to see identification). Officer Morris
stopped the car, got out of the car, and Appellant fled, and the suppression
court made a factual finding to this effect, which is supported by the record.
See Jones, 988 A.2d at 654 (noting that where the suppression court’s
factual findings are supported by the record, appellate courts are bound by
those findings).
Regardless, the record supports the contention that the officers had
both reasonable suspicion and probable cause to stop Appellant. Here,
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police officers with extensive narcotics experience observed Appellant
conduct a drug transaction in a high crime area specifically known for drug
transactions. See Commonwealth v. Thompson, 985 A.2d 928, 935 (Pa.
2009) (noting that a police officer’s experience may be fairly regarded as a
relevant factor in determining probable cause).
Further, prior to any questioning or interactions by the officers,
Appellant fled. It is well-settled that unprovoked flight in a high crime area
is sufficient to create a reasonable suspicion to justify an investigatory stop.
See In the Interest of D.M., 781 A.2d 1161, 1163–64 (Pa. 2001); see
also Commonwealth v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012)
(“nervous, evasive behavior and headlong flight all provoke suspicion of
criminal behavior in the context of response to police presence”);
Commonwealth v. McCoy, 154 A.3d 813, 819 (Pa. Super. 2017) (noting
that Appellant’s evasive and suspicious behavior in a high crime area, his
unprovoked flight, and officers’ training and experience, provided requisite
reasonable suspicion). All evidence recovered from Appellant was the result
of a search incident to a lawful arrest. See Commonwealth v. Ingram,
814 A.2d 264, 272 (Pa. 2002) (noting that a warrantless search incident to a
lawful arrest is reasonable, and no justification other than that required for
the arrest itself is necessary to conduct such a search).
Accordingly, the suppression court properly denied Appellant’s motion
to suppress. Jones, 988 A.2d at 654.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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