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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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:
APPEAL OF: K.P. :
:
:
:
: No. 2326 EDA 2016
Appeal from the Dispositional Order July 18, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-JV-0000423-2016
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 21, 2017
K.P., a minor, appeals from the dispositional order of July 18, 2016,
following his adjudication of delinquency for possession of a firearm by a
minor.1 We affirm.
The relevant facts and procedural history are as follows:
On March 1, 2016 at approximately 5:50 PM, Philadelphia Police
Officer Sweeney (Badge #5412, 17th District) observed a large
group of ten to fifteen males blocking the entrance to the front
door of a market, located at the 2100 block of Morris Street.
Officer Sweeney was in a vehicle with Officer Velasquez. The
officers approached the corner and both officers exited their
vehicle. K.P. turned away from the police and grabbed his
waistband. Officer Sweeney then asked K.P. to stop. As the police
walked toward K.P., K.P. began to flee and Officer Sweeney gave
chase on foot, while his partner pursued in the police vehicle.
Officer Sweeney then observed K.P. remove a handgun from his
waistband, as they turned the corner into an alley. Officer
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1
18 Pa.C.S.A. § 6110.1
* Retired Senior Judge assigned to the Superior Court.
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Sweeney observed K.P. holding the handgun, and saw K.P. throw
the handgun into the backyard of 2008 Morris Street.
Officer Sweeney was in full uniform. Prior to this incident, Officer
Sweeney had made one to two arrests in that area. Officer
Sweeney described the area as a “high crime area,” stating that
there have been shootings and a homicide within a block or two
of that area. The homicide and shootings had occurred within six
months of this incident. There had also been roll call complaints
regarding said area. The handgun was recovered within five yards
from where the [Appellant] was arrested.
Officer Sweeney did not receive any specific call to go to that
location, nor was he responding to any specific complaint. Officer
Sweeney observed that the young males were violating the city
ordinance for blocking the front entrance of a store or blocking the
sidewalk. Officer Sweeney did not issue any citation for said
violation. Officer Sweeney only told K.P. to stop after K.P. began
to hide his body from police and walk away. Officer Sweeney did
not unstrap his weapon, nor did he have his hand on his weapon,
at the time that he told K.P. to stop. Based on his observations
of K.P., Officer Sweeney believed that K.P. had a gun. Once K.P.
turned into the alley, K.P. was trapped in the alley.
The parties stipulated that the firearm recovered from the ground
near K.P. was operable at the time that it was recovered, and that
K.P. did not have a license to carry a firearm in the Commonwealth
of Pennsylvania. The parties further stipulated that K.P.’s mother,
A.P. and K.P.’s grandfather, A.G., that they are familiar with K.P.’s
reputation in the community, and that K.P. has a reputation for
being peaceful and law-abiding.
Trial Court Opinion, 1/13/17 at 2-3 (citations omitted).
On March 9, 2016, Appellant filed a motion to suppress all physical
evidence, arguing that Appellant’s arrest was illegal as the officers did not
have probable cause or reasonable suspicion for detaining him. Appellant’s
Motion to Suppress at 1 (unpaginated). On March 29, 2016, a hearing was
held on Appellant’s motion. In May 2016, the trial court denied Appellant’s
motion to suppress and adjudicated Appellant delinquent. Disposition was
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deferred until July 18, 2016, at which time the court entered an order placing
Appellant on Youth Violence Reduction Partnership Probation, among other
conditions.
Appellant timely appealed. In January 2017, the trial court filed a
1925(a) statement but did not order a 1925(b) statement. Appellant raises
the following issues for our review:
1. Did not the trial court err by denying [A]ppellant’s motion to
suppress physical evidence under both the Federal and State
Constitutions, inasmuch as reasonable suspicion that criminal
activity was afoot was lacking where [A]ppellant merely turned
his body away from police when he saw them and grabbed his
waist, and the subsequent recovery of a firearm was the result
of forced abandonment stemming from the illegal investigation
detention?
2. Did the trial court err by denying [A]ppellant’s motion to
suppress physical evidence under both the Federal and State
Constitutions, where there did not exist probable cause to
arrest [A]ppellant under any Philadelphia City Ordinance?
Appellant’s Brief at 3.
Appellant’s first contention is that the police did not have reasonable
suspicion that criminal activity was afoot in order to justify a stop and
investigative detention of K.P. Appellant’s Brief at 8. According to Appellant,
the firearm recovered was fruit of an unlawful detention. Id. Thus, Appellant
concludes, the trial court erred in denying Appellant’s suppression motion.
In reviewing a suppression order:
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
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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.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted).
Appellant’s claim turns on the nature of the encounter between
Appellant and the police. 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 an
investigative stop. See Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa.
Super. 2014) (“Our Supreme Court has held that where ‘a citizen approached
by a police officer is ordered to stop … obviously a ‘stop’ occurs.’”) (quoting
Commonwealth v. Jones, 378 A.2d 835, 839 (Pa. 1977)). Thus, we must
determine whether Officer Sweeney had reasonable suspicion that Appellant
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was involved in criminal activity at the time of the seizure. If Officer Sweeney
had reasonable suspicion of criminal activity on the part of Appellant, the gun
discarded by Appellant during the chase is not subject to suppression. See
Commonwealth v. Roberts, 133 A.3d 759, 772 (Pa. Super. 2016) (holding
that contraband discarded following a lawful detention is admissible.)
Under Pennsylvania law, any items abandoned by the individual
under pursuit are considered fruits of a seizure. Those items may
only be received in evidence when an officer, before giving chase,
has at least the reasonable suspicion necessary for an
investigative stop. Stated another way, when one is
unconstitutionally seized by the police, i.e. without reasonable
suspicion or probable cause, any subsequent flight with the police
in pursuit continues the seizure and any contraband discarded
during the pursuit is considered the product of coercion and is not
admissible.
In re M.D., 781 A.2d 192, 196 (Pa. Super. 2001) (emphasis added, internal
citations and quotation marks omitted); see also Ranson, 103 A.3d at 77
(“[A]s pursuit by police constitutes a seizure under the law of this
Commonwealth, a person may be seized even though he is moving away from
the police.”) (citing Commonwealth v. Matos, 679 A.2d 769 (Pa. 1996)).
In deciding whether reasonable suspicion exists for an
investigatory stop, our analysis is the same under both Article I,
§ 8 and the Fourth Amendment.
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.” This
assessment, 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.
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In re M.D., 781 A.2d at 169 (citations omitted). Here, Officer Sweeney
initially approaches Appellant to investigate the violation of a city ordinance.
In Philadelphia, loitering is defined as:
(1) Definitions
a. Loitering. Idling or lounging in or about any place or
facility described in (2), so as to prevent others from
passage, ingress or egress, or to idle or lounge in or
about any place or facility described in (2) in violation of
any exiting statutes or ordinances.
***
(2) Prohibited Conduct. No person shall loiter in, on or about
any underground platform or concourse, or any elevated
platform serving public transportation facilities, or any
underground or elevated passageway used by the public, or
any railroad passenger station or platform, or on the steps
leading to any of them. No person shall loiter in, on or about
private property used to accommodate the public.
City of Philadelphia Ordinance, § 10-603(a)(1), (2); see also City of
Philadelphia Ordinance, § 10-615(2)(d) (relating to disorderly conduct and
related offenses).
As Officer Sweeney believed Appellant was in violation of a city
ordinance he had the authority to file or issue a citation, file a complaint, or
arrest Appellant. This authority is conferred by the state legislature.
[T]he Supreme Court noted that Pennsylvania Rule of Criminal
Procedure 51 provided four circumstances under which summary
criminal cases may be instituted: (a) issuing a citation to the
defendant; (b) filing a citation; (c) filing a complaint; or (d)
arresting without a warrant when arrest is specifically authorized
by law.
***
[T]he State Legislature has conferred authority on police officers
in the City of Philadelphia to arrest individuals for violating city
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ordinances. The relevant statutory provision granting such
authority provides as follows:
§13349. Summary proceedings for violation of
ordinances
Any police officer or constable, upon view of the breach of
any ordinance of any city of the first class, is authorized to
forthwith arrest the person or persons so offending, without
any process…
53 P.S. § 13349.
Commonwealth v. Rose, 755 A.2d 700, 702-703 (Pa. Super. 2000)
(footnotes and citations omitted), see also In re C.C.J., 799 A.2d 116, 122
(Pa. Super. 2002) (finding that police had reasonable suspicion to justify an
investigatory stop where a juvenile was observed in violation of the Public
School Code).
Officer Sweeney testified that Appellant and a group of young men were
blocking the entrance to a market. Notes of Testimony, 3/29/16 at 4, 7. As
Officer Sweeney exited his vehicle, he observed Appellant turn his body, grab
his waistband, and begin to walk away. Id. Based on his observations, Officer
Sweeney approached and asked Appellant to stop. Id. Appellant then began
to run, and Officer Sweeney gave chase. Id. at 4-5. While running Officer
Sweeney observed Appellant remove a firearm from his waistband and throw
it into the backyard of 2008 Morris Street. Id. Considering the totality of
these circumstances, Appellant was subject to a valid investigatory stop and
brief detention by the police. Accordingly, the firearm discarded during flight
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was admissible, and the trial court properly denied Appellant’s motion to
suppress. Roberts, 133 A.3d at 772.
Appellant next contends that the police lacked probable cause for an
arrest. Appellant’s Brief at 23. Appellant further asserts that the trial court
did not make a finding that he violated an ordinance and that the officer’s
testimony was insufficient to support probable cause for a violation of any
ordinance. Appellant’s Brief at 19-20. We reject the premise of Appellant’s
claim as probable cause is not the relevant standard. See In re C.C.J., 799
A.2d at 121. (“In order to justify an investigatory stop, the police must have,
at inception of stop, a reasonable suspicion that criminal activity is afoot.”).
Accordingly, we need not address this issue.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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