J-A19008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KYLE M. JONES,
Appellant No. 1695 EDA 2016
Appeal from the Judgment of Sentence Entered May 12, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008810-2105
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 15, 2017
Appellant, Kyle M. Jones, appeals from the judgment of sentence of
three years’ probation, imposed after he was convicted of carrying a firearm
without a license, 18 Pa.C.S. § 6106. On appeal, Appellant solely challenges
the trial court’s denial of his pretrial motion to suppress a gun discovered in
his possession during an investigative detention. After careful review, we
affirm.
Appellant was charged with the above-stated offense (as well as
carrying a firearm on a public street in Philadelphia, 18 Pa.C.S. § 6108) after
he was stopped and frisked by police officers on August 14, 2015. During
that stop and frisk, officers discovered a gun in Appellant’s possession. Prior
to trial, Appellant filed a motion to suppress the gun. Therein, Appellant
argued, inter alia, that the officers did not have reasonable suspicion to
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conduct an investigative detention and, thus, the subsequent frisk of his
person and seizure of the gun was illegal.
The trial court conducted a suppression hearing on March 2, 2016.
There, the following evidence was presented:
Police Officer Abdul Malik testified that on August 14,
2015, at around 11:50 p.m., he was on patrol in the 18 th District
in Philadelphia when he received a radio broadcast for a person
with a gun on the 5500 Block of Larchwood Avenue. (Notes of
Testimony, 3/2/16, p. 6). A second radio call came through
within minutes, broadcasting information that there had been a
shooting at that location and that a victim was being transported
to the hospital. Subsequently, another flash broadcast came
through identifying three possible suspects - … a black male
wearing a black/white shirt, … a black male wearing a red shirt,
and a black male wearing a multicolored shirt and red hat.[1]
(N.T. pp. 7-8). Officer [Malik] immediately surveyed the area.
While driving by the 5500 block of Hazel Avenue,[2] Officer Malik
observed four males fitting the flash description standing on the
street and [he] went over police radio to relay this information.
(Id. at 9).
As [Officer Malik] approached the group of men, [he] told
them to put their hands up in the air and asked if they had any
weapons on them. Officer Malik stated that his justification for
asking about the presence of weapons grew out of fear for his
safety based on the report of a founded shooting in the area.
[Appellant], who matched the description of the black male
suspect with a black t-shirt, responded that he did have a
weapon and that it was located in his pants pocket. Fearing for
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1
The trial court incorrectly states that the flash broadcast identified a black
male wearing a white shirt. The portion of Officer Malik’s testimony cited by
the court does not support that there was any such description of a fourth
male suspect.
2
Officer Malik testified that the 5500 block of Hazel Avenue is “[t]he next
block over” from where the shooting occurred. N.T. Suppression Hearing,
3/2/16, at 9.
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his safety, Officer Malik handcuffed [Appellant] and retrieved the
firearm from his right pocket. (Id. at 16-18).
Trial Court Opinion (TCO), 10/4/16, at 1-2.
Based on Officer Malik’s testimony, the trial court concluded that, inter
alia, the officer had reasonable suspicion to detain Appellant for further
investigation. The court denied Appellant’s motion to suppress and his case
immediately proceeded to a non-jury trial. At the close thereof, the court
convicted Appellant of carrying a firearm without a license (graded as a
misdemeanor of the first degree). The court acquitted Appellant of carrying
a firearm on a public street in Philadelphia. On May 12, 2016, Appellant
was sentenced to three years’ probation.
Appellant filed a timely notice of appeal, and he 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. The trial court subsequently filed a Rule
1925(a) opinion. Herein, Appellant presents one issue for our review: “Did
not the trial court err in denying [A]ppellant’s motion to suppress, as the
officers did not have reasonable suspicion to detain him?” Appellant’s Brief
at 3.
Our well-settled standard of review of a denial of a suppression motion
is as follows:
[An appellate court’s] 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
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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, [the appellate court
is] bound by [those] 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 []
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted).
Here, the trial court concluded, and the parties do not dispute, that
Appellant was subjected to an investigative detention when he was
approached by Officer Malik (along with several other responding police
officers, see N.T. Hearing, 3/2/16, at 14-16), and immediately directed to
put his hands in the air. See TCO at 3; Appellant’s Brief at 14;
Commonwealth’s Brief at 7. Therefore, we must assess only whether that
detention was lawful. As this Court has explained:
The police are permitted to stop and briefly detain citizens
only when they have reasonable suspicion, based on specific and
articulable facts, that criminal activity may be afoot.
Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153,
1156 (2000) (citing Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S.Ct.
1868, 1884, 20 L.Ed.2d 889 (1968)); Commonwealth v.
Melendez, 544 Pa. 323, 328, 676 A.2d 226, 228 (1996);
Commonwealth v. Hicks, 434 Pa. 153, 160, 253 A.2d 276,
280 (1969). In determining whether reasonable suspicion exists
for an investigative detention, or as it is also known in the
common legal vernacular, a “Terry stop,” the inquiry is the
same under both the Fourth Amendment of the United States
Constitution and Article 1, § 8 of the Pennsylvania Constitution.
Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677
(1999); Commonwealth v. Jackson, 548 Pa. 484, 488, 698
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A.2d 571, 573 (1997). “The fundamental inquiry is an objective
one, namely, whether ‘the facts available to the officer at the
moment of the intrusion warrant a man of reasonable caution in
the belief that the action taken was appropriate.’” Zhahir,
supra, at 552, 751 A.2d at 1156 (citing Terry, supra, 392 U.S.
at 21–22, 88 S.Ct. at 1880). In order to determine whether the
police had a reasonable suspicion to subject an individual to an
investigative detention, the totality of the factual circumstances
which existed at the time of the investigative detention must be
considered. Id. (citing United States v. Cortez, 449 U.S. 411,
417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). “Among the
factors to be considered in establishing a basis for reasonable
suspicion are tips, the reliability of the informants, time,
location, and suspicious activity, including flight.”
Commonwealth v. Gray, 784 A.2d 137, 142 (Pa. Super. 2001).
Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super. 2002).
In this case, the thrust of Appellant’s argument is that Officer Malik
lacked reasonable suspicion to detain him because the Terry stop was
“based solely on [Appellant’s] matching the description of a criminal suspect
provided by an anonymous tip.” Appellant’s Brief at 15 (emphasis added).
Appellant then discusses case law holding that Terry stops are illegal if
premised only on uncorroborated, anonymous-tips. See id. at 15-19
(discussing, inter alia, Commonwealth v. Hawkins, 692 A.2d 1068, 1070
(Pa. 1997) (“If the police respond to an anonymous call that a particular
person at a specified location is engaged in criminal activity, and upon
arriving at the location [they] see a person matching that description but
nothing more, they have no certain knowledge except that the caller
accurately described someone at a particular location.”), and Jackson, 698
A.2d at 573 (“When … the underlying source of the police department’s
information is an anonymous telephone call, the courts have recognized that
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the tip should be treated with particular suspicion.”)). Appellant claims that
here, “there was nothing at all beyond the vague description” of the
suspects that was provided by the anonymous caller and, therefore, Officer
Malik did not possess reasonable suspicion to conduct the Terry stop.
Appellant’s Brief at 19.
Appellant’s reliance on Hawkins and Jackson is misplaced and
unconvincing. Initially, it is not even clear from the record that the
description of the suspects came from the anonymous source. Specifically,
Officer Malik testified that the anonymous tipster told police that there was
“a person with a gun” and “a possible shooting” at a location “on the 5500
Block of Larchwood Avenue.” N.T. Suppression Hearing, 3/2/16, at 7.
Officer Malik then explained that, when officers arrived at the location, they
found a male victim with gunshot wounds. Id. At that point, the responding
officers put out a “founded shooting” flash, which meant that they had found
“a person shot and shell casings….” Id. at 8. “Less than a couple minutes”
after the founded shooting flash, Officer Malik received a third flash report,
which included “the description of the suspects[.]” Id. at 9.
From this testimony, the trial court seemingly concluded that the
anonymous caller had only reported ‘a person with a gun’ and a ‘possible
shooting,’ as that was the only information transmitted in the first radio
flash. See id. at 53; TCO at 1-2. Thereafter, the police officers at the
scene relayed the description of the shooters. See N.T. Suppression
Hearing, 3/2/16, at 53; TCO at 1-2. While nothing in the record clarifies
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from whom the first-responding officers obtained that description, it is
reasonable to infer that the description was provided by a known person at
the scene, i.e., the victim or an eyewitness to the shooting. As our Supreme
Court stated in Jackson, “a tip from an informer known to the police
carrie[s] enough indicia of reliability for the police to conduct a Terry
search, even though the same tip from an anonymous informant would likely
not have done so.” Jackson, 698 A.2d at 574 (citation omitted). This is
true because “a known informant places himself or herself at risk of
prosecution for filing a false claim if the tip is untrue, whereas an unknown
informant faces no such risk.” Id. (citation omitted). Because the record
suggests that the description of the suspects in this case was provided by
someone known to police, it was more reliable than an uncorroborated,
anonymous tip.
Moreover, we also point out that even if Appellant were correct that
the anonymous caller provided the description of the suspects, the first-
responding officers sufficiently corroborated the source’s information before
Officer Malik detained Appellant. In particular, the officers found a victim
who had been shot at the location where the anonymous tipster said a
shooting had occurred. The Jackson Court declared that, “a Terry stop
may be made on the basis of an anonymous tip, provided the tip is
sufficiently corroborated by independent police work to give rise to a
reasonable belief that the tip was correct.” Jackson, 698 A.2d at 574
(discussing the holding of Alabama v. White, 496 U.S. 325, 331 (1990)).
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“Essentially, the corroboration requirement is based on the principle that
because an informant is right about some things, he or she is probably right
about other facts also, including the allegation that the object of the tip is
engaged in criminal activity.” Id. (citing White, 496 U.S. at 331). Here,
the anonymous tip was corroborated by the fact that a shooting had indeed
occurred at the location provided by the tipster; thus, if the anonymous
caller did provide the description of the perpetrators, that tip was more
reliable than the uncorroborated, anonymous tips at issue in Hawkins and
Jackson.
Finally, we reject Appellant’s assertion that the description was
“incredibly vague[,]” and that it was the only fact supporting Officer Malik’s
suspicion that criminal activity was afoot. Appellant’s Brief at 19. The
description, while not abundantly detailed, provided some identifying
information to Officer Malik; namely, the suspects were described as being
three black males, one wearing a black and white t-shirt, another wearing a
red t-shirt, and a third wearing a multi-colored t-shirt and a red hat. Officer
Malik observed Appellant, a black man who was wearing a black t-shirt,
standing with three other black men, one of whom was in a red t-shirt, and
one of whom was wearing a red hat. Moreover, Appellant and his
companions were located approximately one block away from where the
shooting occurred, just minutes after it had happened. We agree with the
trial court that the totality of these circumstances provided Officer Malik with
reasonable suspicion to detain Appellant for further investigation.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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