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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDOLPH LAVELL RODGERS :
:
Appellant : No. 915 WDA 2016
Appeal from the Judgment of Sentence May 23, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014275-2015
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED MAY 21, 2018
Randolph Lavell Rodgers appeals from his judgment of sentence of
three to six years imprisonment followed by three years probation after he
was convicted of crimes related to his possession of a firearm and a small
amount of marijuana. On appeal, Appellant challenges the denial of his
pretrial suppression motion. We affirm.
The suppression hearing transcript reveals the following. At
approximately 12:45 a.m. on November 1, 2015, Officer Steve Kondrosky of
the City of McKeesport police department was dispatched to look for a black
male wearing a light-colored sweat suit in the vicinity of a residence that had
been the subject of prior burglaries during which firearms had been stolen.
Approximately two minutes after the dispatch, Officer Kondrosky spotted
Appellant wearing a light-colored sweat suit, and walking in front of a store
two blocks from the residence in question. Thirty seconds later, he
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encountered Appellant half of a block farther away from the residence, in an
unlit alley not commonly used for foot traffic. Officer Kondrosky initially
drove past Appellant, and they said hello to each other. Officer Kondrosky
then stopped his vehicle and, getting out of it, asked Appellant to stop so he
could have a word with him. Appellant then grasped at the waistband of his
sweat pants at the right hip, in a manner Officer Kondrosky in his eight
years of experience associated with concealment of a firearm, and fled.
Officer Kondrosky pursued, and when Appellant eventually was taken into
custody, he had a sawed-off rifle in his pants and drugs in his pocket.
As a result, Appellant was charged with numerous crimes. Appellant
filed a pre-trial motion to suppress all evidence obtained from his seizure,
claiming that Officer Kondrosky lacked reasonable suspicion to stop him.
The trial court denied the motion after a hearing. Following a non-jury trial,
Appellant was convicted of, inter alia, possession of a firearm prohibited and
firearms not to be carried without a license and was immediately sentenced
as indicated above. Appellant filed a timely notice of appeal, and both he
and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises one question for our consideration:
Whether the trial court erred in denying [Appellant’s] motion to
suppress when Officer Kondrosky made clear on cross-
examination that upon exiting his marked police car, while in full
uniform, he immediately ordered [Appellant] to stop but, at the
precise moment of seizure, Officer Kondrosky did not have
reasonable suspicion, based on specific and articulable facts, to
believe that [Appellant] was engaged in criminal activity, in
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violation of his federal and state constitutional rights against
unreasonable searches and seizures?
Appellant’s brief at 5.
We consider Appellant’s question mindful of the following standard of
review.
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 court[]
below are subject to our plenary review.
Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).
The amount of suspicion necessary to validate an officer’s seizure of an
individual varies based upon the nature of the interaction. As we have
explained,
The three levels of interaction are mere encounter, investigative
detention, and custodial detention. 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.
A mere encounter does not carry any official compulsion to stop
or respond to police, and as a result, does not need to be
supported by any level of suspicion.
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Commonwealth v. Guzman, 44 A.3d 688, 692-93 (Pa.Super. 2012)
(internal citations and quotation marks omitted).
In the instant case, Appellant, the Commonwealth, and trial court all
agree that Officer Kondrosky initiated an investigative detention, rather than
a mere encounter, when he exited his vehicle and told Appellant to stop.
Our review of the record supports that legal determination. Officer
Kondrosky initially testified that Appellant fled immediately after the officer
merely requested to speak with Appellant. See N.T. Suppression Hearing,
5/17/16, at 12. That would have constituted a mere encounter. See, e.g.,
Commonwealth v. Young, 162 A.3d 524, 529 (Pa.Super. 2017) (holding
three officers’ approaching and questioning the defendant on a public street
was a mere encounter). However, Officer Kondrosky clarified, after review
of his affidavit of probable cause, that he ordered Appellant to stop before
requesting to speak with him. See N.T. Suppression Hearing, 5/17/16, at
20-21. Hence, Appellant was subject to an investigative detention from the
time Officer Kondrosky ordered him to stop. See, e.g., 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.” (citation and internal quotation marks omitted)).
Appellant, noting that Officer Kondrosky testified at the suppression
hearing that it was only after Appellant was instructed to stop that he
reached for his hip and ran, see N.T. Suppression Hearing, 5/17/16, at 20-
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21, contends that the officer lacked reasonable suspicion to order him to
stop. Appellant’s brief at 27.
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 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. Raglin, 178 A.3d 868, 872 (Pa.Super. 2018) (internal
citations and quotation marks omitted).
Appellant claims that Officer Kondrosky detained Appellant solely
based upon a vague, incomplete description given by the alleged burglary
victim through another officer without indication of how fresh the
information was. Appellant’s brief at 32-33. Appellant argues that such is
insufficient to constitute reasonable suspicion. We disagree.
The totality of relevant circumstances are as follows. At approximately
12:45 a.m., Officer Kondrosky was dispatched to a residence with which he
was familiar, due to its being the scene of prior burglaries, based upon the
report of a new attempted burglary. N.T. Suppression Hearing, 5/17/16, at
6. Another officer had arrived at the scene first, obtained descriptions of the
attempted burglars from the victim, and broadcast the descriptions via radio.
Id. at 16. Officer Kondrosky drove around the area near the residence
looking for a black male in a light-colored sweat suit. Minutes later, he
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spotted Appellant, a black male in a light-colored sweat suit, walking in front
of an establishment two blocks away from the victim’s residence. Id. at 10.
He lost sight of Appellant, but found him thirty seconds later, walking in an
alley that had no lights and was not commonly travelled because it lead to
only one occupied residence. Id. at 11.
We see no error of law of abuse of discretion in the suppression court’s
finding that the following facts “available to the officer at the moment of the
intrusion [would] warrant a man of reasonable caution in the belief” that an
investigative detention was appropriate. Commonwealth v. Mackey, 177
A.3d 221, 229 (Pa.Super. 2017) (citation and internal quotation marks
omitted). A man fitting the description of a known, identified victim was
spotted in the immediate vicinity of the attempted burglary, walking away
from the victim’s residence, and, after a marked police vehicle passed him,
he left the street, in the middle of the night, for an unlit, rarely-used alley.
While none of those facts alone is indicative of criminal activity, this
“combination of innocent facts, when taken together, . . . warrant[ed]
further investigation by the police officer.” Raglin, supra at 872.
Compare Commonwealth v. Smith, 172 A.3d 26, 34 (Pa.Super. 2017)
(concluding officers had reasonable suspicion to stop Smith where he met
the description of a suspect obtained from a surveillance video, and was in
close proximity to location of drug transaction in an area known for a high
volume of drug activity), with Commonwealth v. Morrison, 166 A.3d 357,
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366 (Pa.Super. 2017) (holding officers did not have reasonable suspicion to
stop Morrison, who was walking down the street at approximately 8:30 p.m.,
five blocks from the site of a suspected robbery, where the only bases for
the stop were a report from unknown source who offered a description of the
suspect not wholly consistent with Morrison’s appearance, and the fact that
Morrison was nervous as the officers approached him).
Thus, Officer Kondrosky had reasonable suspicion to order Appellant to
stop for questioning. Further, Appellant acknowledges that Officer
Kondrosky had the requisite suspicion to seize him after Appellant grabbed
at his waistband in a manner consistent with hiding a firearm and fled.
Appellant’s brief at 19-20. Accordingly, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
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