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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
KRYSTAL PEREA :
:
Appellant : No. 3455 EDA 2016
Appeal from the Judgment of Sentence August 10, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0002181-2016
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 12, 2018
Appellant, Krystal Perea, appeals from the judgment of sentence
entered in the Philadelphia Court of Common Pleas, following her bench trial
conviction for possession of a controlled substance.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On January 21, 2016, Police Officer Kolb was on duty at
approximately 4:45 p.m. in the vicinity of 5547 Walnut
Street in Philadelphia. He was responding to a radio call
[from an anonymous tip] for a person with a gun at 5500
Walnut Street, described as [a] Hispanic male with a red
hoodie, glasses[,] and carrying a black firearm. When
[Officer Kolb] pulled up at the scene, he observed
[Appellant], who had short shaved hair and was wearing a
red–hooded sweatshirt and glasses─she looked like a male
and matched the description of the flash. When Officer
Kolb first saw [Appellant], [she] had her hand underneath
her hooded sweatshirt in the waistband, and [Officer Kolb]
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1 35 P.S. § 780-113(a)(16).
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* Retired Senior Judge assigned to the Superior Court.
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immediately shouted to her to pull her hand out. Appellant
then instantaneously fled, but when [Officer Kolb] ordered
her to the ground, she fell. When the officer approached
Appellant, she pulled her hand out of her waistband, she
had a clear plastic bag filled with three blue vials
containing a white substance, alleged crack cocaine.
[Officer Kolb] testified that [he] had arrived in a marked
vehicle, within a minute of receiving the radio call. The
area was known for drug sales and shootings. When
[Officer Kolb] initially arrived at the location, the person he
saw appeared to be a Hispanic male, [wearing a] red-
hooded sweatshirt and glasses, with short[,] shaved hair.
Officer Kolb has previously encountered people who carry
guns without a license, and they typically keep them in
their waistbands. [Appellant’s hand was] under her
sweatshirt jacket at her waist. … [Officer Kolb] asked
Appellant to show her hands for officer safety because he
believed she had a firearm in her waistband.
(Trial Court Opinion, filed February 22, 2016, at 1-2) (internal citations
omitted).
Appellant filed a suppression motion in municipal court. On August 10,
2016, the court held a suppression hearing and denied relief. Appellant
proceeded to a waiver trial in municipal court that same day. The court
convicted Appellant of possession of a controlled substance and sentenced
her to nine months’ probation. On August 25, 2016, Appellant timely filed a
petition for writ of certiorari under Pa.R.Crim.P. 1006. After a hearing on
October 26, 2016, the Philadelphia Court of Common Pleas denied
Appellant’s petition. Appellant timely filed a notice of appeal on November
3, 2016. On December 21, 2016, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
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1925(b); Appellant timely complied on January 11, 2017.
Appellant raises the following issue for our review:
WHERE POLICE STOPPED APPELLANT BECAUSE SHE MET
THE DESCRIPTION AND LOCATION OF A PERSON ALLEGED
IN AN ANONYMOUS TIP TO HAVE A GUN, AND SHE WAS
STANDING ON A WINTER’S DAY WITH HER HANDS UNDER
HER SWEATSHIRT IN HER WAISTBAND, WAS NOT
REASONABLE SUSPICION LACKING AND SUPPRESSION OF
PHYSICAL EVIDENCE REQUIRED UNDER THE FOURTH
AMENDMENT OF THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 8 OF THE PENNSYLVANIA
CONSTITUTION?
(Appellant’s Brief at 3).
Appellant argues the physical evidence the police found in her
possession should have been suppressed because the police subjected her to
an illegal detention. Appellant claims when the police asked her to put her
hand in the air, she became the subject of an investigative detention.
Appellant avers she only matched the description of an anonymous tip,
which does not give police reasonable suspicion to conduct a Terry2 stop
absent independently corroborated criminal activity. Appellant maintains
that she merely stood on the sidewalk with her hand in her waistband, which
is not an indication that criminal activity is afoot. Appellant submits the
police needed more than a hunch or suspicion to conduct the investigative
detention. Appellant concludes this Court should vacate her conviction or,
alternatively, reverse the trial court’s denial of her suppression motion and
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2 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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remand for a new trial with instructions to suppress the evidence. We
disagree.
Our standard of review of the denial of a motion to suppress evidence
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 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 [the] 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 [trial court
are] subject to plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),
appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).
The focus of search and seizure law “remains on the delicate balance
of protecting the right of citizens to be free from unreasonable searches and
seizures and protecting the safety of our citizens and police officers by
allowing police to make limited intrusions on citizens while investigating
crime.” Commonwealth v. Moultrie, 870 A.2d 352, 356 (Pa.Super. 2005)
(quoting Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.Super. 2004))
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(internal quotation marks omitted). “[I]n assessing the lawfulness of
citizen/police encounters, a central, threshold issue is whether…the citizen-
subject has been seized.” Commonwealth v. Strickler, 563 Pa. 47, 57,
757 A.2d 884, 889 (2000).
Contacts between the police and citizenry fall within three general
classifications:
The first [level of interaction] is a “mere encounter” (or
request for information) which need not be supported by
any level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative
detention” must be supported by a reasonable suspicion; it
subjects a suspect to a stop and a period of detention, but
does not involve such coercive conditions as to constitute
the functional equivalent of an arrest. Finally an arrest or
“custodial detention” must be supported by probable
cause.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth
v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa.
668, 876 A.2d 392 (2005)).
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. The
hallmark of this interaction is that it carries no official
compulsion to stop or respond.
In contrast, an 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.
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* * *
To determine if an interaction rises to the level of an
investigative detention, i.e., a Terry stop, the court must
examine all the circumstances and determine whether
police action would have made a reasonable person believe
[she] was not free to go and was subject to the officer’s
orders.
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.
* * *
Reasonable suspicion exists only where the officer is able
to articulate specific observations which, in conjunction
with reasonable inferences derived from those
observations, led him reasonably to conclude, in light of
his experience, that criminal activity was afoot and that
the person he stopped was involved in that activity.
Therefore, the fundamental inquiry of a reviewing court
must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant
a [person] of reasonable caution in the belief that the
action taken was appropriate.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal
citations omitted).
“[T]he question of whether reasonable suspicion existed at the time of
an investigatory detention must be answered by examining the totality of
the circumstances to determine whether there was a particularized and
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objective basis for suspecting the individual stopped of criminal activity.”
Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000)
(quoting Commonwealth v. Beasley, 761 A.2d 621, 625-26 (Pa.Super.
2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).
[T]he 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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v.
Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747,
902 A.2d 1239 (2006)) (internal citations and quotation marks omitted).
“While a tip can be a factor [in determining whether reasonable
suspicion existed], an anonymous tip alone is insufficient as a basis for
reasonable suspicion.” Commonwealth v. Leonard, 951 A.2d 393, 397
(Pa.Super. 2008) (quoting In re M.D., 781 A.2d 192, 197 (Pa.Super.
2001)). “Because an anonymous tip typically carries a low degree of
reliability, more information is usually required before investigating officers
develop the reasonable suspicion needed to support an investigatory stop of
a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.Super. 2006).
Police cannot initiate a detention based solely upon an
anonymous tip that a person matching the defendant’s
description in a specified location is carrying a gun.
However, if the person described by the tipster engages in
other suspicious behavior, such as flight, reasonable
suspicion justifying an investigatory detention is present.
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Evasive behavior also is relevant in the reasonable-
suspicion mix. Moreover, whether the defendant was
located in a high[-]crime area similarly supports the
existence of reasonable suspicion. Finally, if a suspect
engages in hand movements that police know, based on
their experience, are associated with the secreting of a
weapon, those movements will buttress the legitimacy of a
protective weapons search of the location where the hand
movements occurred.
Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc),
appeal denied, 605 Pa. 694, 990 A.2d 727 (2010) (internal citations
omitted). Thus, a combination of factors can quickly coalesce to form the
basis for reasonable suspicion, where one factor alone might fail.
Commonwealth v. Gray, 784 A.2d 137 (Pa.Super. 2001).
Instantly, Officer Kolb responded to a call, based on an anonymous tip,
in a high-crime area, for a person carrying a gun, described as a Hispanic
male with a red hoodie and glasses. Officer Kolb arrived on scene within one
minute in a marked vehicle and observed Appellant, who had short, shaved
hair and was wearing a red sweatshirt and glasses. Officer Kolb noticed
Appellant’s hand was in her waistband and shouted at her to remove her
hand for officer safety. Appellant fled and fell to the ground. Appellant
pulled her hand out of her waistband, which revealed a clear plastic bag
filled with three blue vials containing crack cocaine. Officer Kolb then
arrested Appellant. The court denied Appellant’s suppression motion and
convicted her of possession of a controlled substance.
Here, when Officer Kolb asked Appellant to remove her hand from her
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waistband, the interaction changed from a mere encounter to an
investigative detention. See Jones, supra. Appellant’s match of the
description from an anonymous tip was not enough by itself to justify an
investigative detention. See Foglia, supra; Fell, supra. Officer Kolb,
however, did have reasonable suspicion based on the totality of the
circumstances: Appellant matched the description from the call; Appellant
was located in a high-crime area; Officer Kolb arrived on scene within one
minute; the anonymous tip was for a person with a gun; Appellant had her
hand in her waistband, which Officer Kolb knew from his experience could
indicate a secreted firearm. See Foglia, supra; Leonard, supra; Young,
supra; Gray, supra; Cottman, supra. The record supports the court’s
decision to deny Appellant’s suppression motion. See Hoppert, supra.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/18
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