J. A12039/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1608 WDA 2018
:
KEITH JOHNSON :
Appeal from the Order Entered October 26, 2018,
in the Court of Common Pleas of Beaver County
Criminal Division at No. CP-04-CR-0000673-2018
BEFORE: BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2019
The Commonwealth of Pennsylvania appeals from the October 26, 2018
order entered in the Court of Common Pleas of Beaver County granting the
omnibus pre-trial suppression motion filed by appellee, Keith Johnson. We
affirm.
The trial court set forth the following findings of fact:
1. On February 19, 2018, in the Borough of
Ambridge, Beaver County, Pennsylvania,
Officer Joshua Causer received a call around
8:40 p.m. reporting that a male was trying to
sell a handgun in Fred’s Divot, a drinking
establishment located at 816 Merchant Street,
Ambridge.
2. The report was made by the bartender from
Fred’s Divot, Jeremy Bohinsky.
3. The information in the telephone report to the
Ambridge police was that a male was trying to
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sell a gun at the bar. The male was described
as a “black male, short in stature, wearing a red
and black hoodie.”
4. The information conveyed to the police by the
bartender was that he overheard one
conversation between the suspect and one
patron. The bartender reported that he
observed the suspect speaking to other patrons
but he did not hear those conversations.
5. Officer Causer was familiar with Mr. Bohinsky
because Mr. Bohinsky was a witness or a
complainant in “previous incidents that
[Ambridge Police] had at the bar where drunks
were thrown out of the bar or [for] fights that
occurred in front of the bar.”
6. Officer Causer and Officer Chickos of the
Ambridge Police Department responded to the
call at Fred’s Divot within 5 to 10 minutes from
the time of the call. Officer Chickos spoke to
the bartender upon their arrival at Fred’s Divot.
7. The bartender pointed out the suspect to the
police and the bartender repeated that he
overheard the suspect trying to sell a handgun.
There was no information provided to the police
as to when or where any potential sale was to
be completed.
8. The bartender never reported to the police that
the suspect was harassing the patrons[,] or[]
that the bartender saw the suspect possessing
a firearm.
9. The officers spoke with no patrons at
Fred’s Divot once they arrived on scene.
10. The officers observed [appellee] for less than
five minutes before the officers detained him.
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11. Prior to the time that [appellee] was detained,
the police observed no firearm or suspicious
bulges on [appellee’s] clothing.
12. After the police arrived, [appellee] exhibited no
suspicious behavior and he made no furtive
motions indicative of concealing a firearm.
13. There was no information provided to the police
that a gun was ever seen, displayed, or that
[appellee] made a move for his belt/waistband
to show anyone the gun.
14. The officer had no information available to him
concerning [appellee’s] status as a person who
was not permitted to possess a firearm and the
officer had no information as to whether
[appellee] was licensed to carry a firearm.
15. The testimony of [appellee] that he was
approached by one officer in the front who was
blocking his access to the door and another
officer from the back who initially grabbed him
by his shoulder or arm is found to be credible.
16. When the officers approached [appellee] at
Fred’s Divot, one of the officers blocked the door
such that [appellee] could not leave the bar.
17. After the initial interaction where the officers
positioned themselves in front and behind
[appellee], the police escorted [appellee]
outside of Fred’s Divot. [Appellee] was being
physically restrained by the officer who was
behind him by that officer’s conduct in holding
on to [appellee’s] arm.
18. From the initial point of the contact between the
officers and [appellee], [appellee] was not free
to leave.
19. There was no information available to the police
or discovered by the police that [appellee]
attempted to run from the police or, that he was
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engaging in any suspicious behavior once the
police arrived at Fred’s Divot.
20. While [appellee] was detained, he admitted to
the police officers that he was in possession of
a gun. He was searched and the officers seized
a Tiffany Blue Glock 43 9mm from his
waistband.
21. The Commonwealth stipulated that the police
interaction rose to the level of an investigative
detention.
22. [Appellee] made admissions concerning his
possession of the gun and of his reason for
possessing the gun. These admissions were
made after he was escorted out of Fred’s Divot
and while he was being detained by the police.
Trial court opinion, 10/26/18 at 2-5 (footnotes omitted).
Appellee was arrested and charged with persons not to possess, use,
manufacture, control, sell, or transfer firearms, and firearms not to be carried
without a license.1 Appellee filed an omnibus pre-trial motion arguing that
the officers lacked reasonable suspicion to stop and detain him. (Appellee’s
omnibus pre-trial motion, 5/31/18 at unnumbered pages 4-5.) After
conducting a hearing, the trial court granted the suppression motion. (Trial
court opinion and order, 10/26/18.)
The Commonwealth filed a timely notice of appeal wherein it certified
that the suppression court’s order would substantially handicap the
prosecution of this case. (See Commonwealth’s notice of appeal, 11/2/18;
1 18 Pa.C.S.A. §§ 6105(b) and 6106 (a), respectively.
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see also Pa.R.A.P. 311(d) (stating, “[i]n a criminal case . . . the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution.”).)
The trial court directed the Commonwealth to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days. The
Commonwealth timely complied. The trial court subsequently filed its
Rule 1925(a) opinion wherein it relied on its October 26, 2018 opinion and
order as the basis for granting the suppression motion.
The Commonwealth raises the following issue for our review:
Whether the suppression court erred in granting
appellee’s motion to suppress evidence stemming
from an investigative detention on February 19, 2018,
where a police officer received information from a
known informant that [a]ppellee was attempting to
engage in criminal activity when he was trying to sell
a handgun to a patron in a bar?
Commonwealth’s brief at 4.
Our standard of review in addressing a trial court’s order granting a
suppression motion is well settled.
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review
and consider only the evidence from the [appellee’s]
witnesses together with the evidence of the
prosecution that, when read in the context of the
entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate
court if the record supports those findings. The
suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to
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determine if the suppression court properly applied
the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal
citations and quotation marks omitted), appeal denied, 159 A.3d 933 (Pa.
2016).
Here, it is undisputed that appellee’s encounter with the officers rose to
the level of an investigative detention. (See Commonwealth’s brief at 23;
notes of testimony, 10/2/18 at 35.) The Commonwealth argues that the tip
was reliable because the officers knew the informant, and therefore, the tip
established reasonable suspicion in and of itself. (Commonwealth’s brief at
33-34.) The trial court credited the informant as reliable, but deemed the tip
insufficient to substantiate a reasonable suspicion that criminal activity was
afoot when the totality of the circumstances was considered. (Trial court
opinion, 10/26/18 at 10, 13.)
“An investigative detention must be supported by a reasonable and
articulable suspicion that the person seized is engaged in criminal activity”
and “the demand for specificity in the information upon which police action is
predicated is the central teaching of” Fourth Amendment jurisprudence.
Commonwealth v. Hicks, 208 A.3d 916, 927, 938 (Pa. 2019) (citations
omitted). “Reasonable suspicion is a less stringent standard than probable
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cause necessary to effectuate a warrantless arrest, and depends on the
information possessed by police and its degree of reliability in the totality of
the circumstances.” Commonwealth v. Brown, 996 A.2d 473, 477 (Pa.
2010). Our supreme court recently held:
A police officer is entitled to view individuals’ conduct
in light of the “probabilities” that criminal activity may
be afoot, and indisputably may draw “certain common
sense conclusions about human behavior.” Relevant
contextual considerations may include factors such as
a suspect’s presence in a high crime area.
....
[T]he totality of the circumstances test, which, as
noted above, nonetheless requires some
“particularized and objective basis for suspecting the
particular person stopped of criminal activity.” An
officer certainly is entitled to consider “probabilities”
and to employ “common sense,” but, quite
fundamentally, “the whole picture” of the
circumstances “must raise a suspicion that the
particular individual being stopped is engaged in
wrongdoing.”
Hicks, 208 A.3d at 938-939, citing U.S. v. Cortez, 449 U.S. 411, 417-418
(1981) (other citations omitted).
Here, Officer Causer received a tip from the bartender at Fred’s Divot
that a man, described as “a black male, short in stature wearing a red and
black hoodie,” was at the bar and “attempting to sell a gun.” (Notes of
testimony, 10/2/18 at 6.) Officer Causer was familiar with the bartender, as
he had been a witness or a complainant in previous incidents at the bar. (Id.)
Upon arriving at the bar, the bartender told the officers he overheard a man
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trying to sell a gun to one patron at the bar, and the bartender identified the
man as appellee. (Id. at 8-9, 14.) The bartender told the officers that he
observed appellee “going up to several people and probably doing the same”
but that he did not hear the conversations appellee had with those other
people at the bar. (Id. at 9, 14.) The bartender did not tell the officers that
he saw appellee with a gun or that he heard any information about when or
where the sale of the gun was to take place. (Id. at 16-17, 21.)
Officer Causer observed appellee for less than five minutes sitting “down
with his drink at the other end of the bar” while the officers spoke with the
bartender. (Id. at 18, 22.) Officer Causer did not see appellee with a gun.
(Id. at 21.) Prior to the investigative detention, Officer Causer did not position
himself at the bar in an attempt to observe any activity by appellee that may
have been suspicious. (Id. at 18, 20-23.) Appellee did not attempt to flee
the bar once the police arrived. (Id. at 18.)
The record supports the trial court’s findings of fact. In consideration of
the totality of the circumstances, however, Officer Causer did not have some
particularized and objective basis to suspect appellee was engaged in criminal
activity thereby justifying the investigative detention. Although the tip came
from a reliable source, the tip was merely that the bartender overheard a
conversation, without seeing appellant actually in possession of a gun. This
tip alone was insufficient to support a reasonable suspicion that criminal
activity was afoot
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For the forgoing reasons, we find that the trial court did not err in
granting the motion to suppress the evidence obtained as a result of this illegal
investigative detention.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2019
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