J-A21020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DERRICK ROBINSON
Appellant No. 2116 EDA 2014
Appeal from the Judgment of Sentence July 22, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011534-2013
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED AUGUST 12, 2015
Appellant, Derrick Robinson, appeals from the July 22, 2014 judgment
of sentence of two and one-half to five years’ imprisonment, followed by five
years’ probation, imposed following his convictions for persons not to
possess firearms, firearms not to be carried without a license, and carrying
firearms on public streets in Philadelphia.1 After careful review, we affirm.
The trial court has summarized the factual history of this case as
follows.
On August 28, 2013, at about 12:43 a.m.,
Philadelphia Police Officer Christopher Clair and his
partner were on bike patrol when they observed
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 6105, 6106, and 6108, respecetively.
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Appellant in the 3900 block of Market Street in
Philadelphia. Prior thereto, Officer Clair had contact
with [] Appellant at or about 7:45 p.m.[,] while
dispersing an unruly crowd engaged in some sort of
dispute. Officer Clair recalled that during the earlier
encounter, Appellant was more vocal than the other
persons involved in the incident, and had been
wearing a distinctive orange and blue shirt.
When Officer Clair again saw Appellant in the
early morning of the 28th, he and his partner had
just received priority radio call to search for a person
wearing blue jeans and an orange shirt with blue
stripes who, allegedly, was waving a gun in the air.
Officer Clair recalled that earlier that evening
Appellant had been wearing a shirt that matched the
description of the shirt described in the radio call
worn by the man waving the gun.
Upon observing Appellant in the early morning
hours of August 28th, Appellant was in a courtyard
situated behind townhouses near 40th Street. The
officers rode to a spot approximately five feet from
Appellant and requested that he remove his hands
from his pocket. Appellant asked, “Why?” and then
said, “No[,]” at which time Officer Clair began
dismounting from his bike. As the officer climbed off
his bike, Appellant fled northbound through the
courtyard. Office Clair pursued Appellant, who was
clutching his pocket as he ran.
When Appellant reached Market Street, he
turned east and discarded an object over a four[-
]foot wall into a yard. Officer Clair testified that the
abandoned object made a “clinking” sound when it
hit the ground. Appellant was apprehended shortly
thereafter at which time Officer Clair and his partner
escorted Appellant to the spot where he was
observed discarding the object. Once there, Officer
Clair’s partner located a gun in the yard into which
Appellant was observed throwing the object. The
officers did not recover the weapon but instead
contacted Southwest Detectives who secured the
scene and seized the weapon.
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Subsequent testing of the weapon revealed it
to be operable. In addition, Appellant did not have a
license to carry the weapon and was ineligible to
possess a firearm because of a prior felony
conviction.
Trial Court Opinion, 11/17/14, at 2-3.
On September 19, 2013, by criminal information, the Commonwealth
charged Appellant with the aforementioned offenses as well as possession of
a small amount of marijuana.2 On April 23, 2014, Appellant filed an
omnibus pre-trial motion seeking suppression of physical evidence based on,
inter alia, a lack of reasonable suspicion. Appellant’s Omnibus Pre-Trial
Motion, 4/23/14, at 1. On May 27, 2014, the trial court held a hearing on
Appellant’s motion, and at the conclusion of the hearing, denied said motion.
N.T., 5/27/14, at 26. Appellant proceeded immediately to a bench trial, and
the trial court found him guilty of persons not to possess firearms, firearms
not to be carried without a license, and carrying firearms on public streets in
Philadelphia. Id. at 33. The Commonwealth nolle prossed the marijuana
charge. Id. On July 22, 2014, the trial court sentenced Appellant to two
and one-half to five years’ imprisonment, followed by five years’ probation.3
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2
35 P.S. § 780-113(a)(31).
3
Specifically, the trial court sentenced Appellant to two and one-half to five
years’ imprisonment for firearms not to be carried without a license and a
consecutive five years’ probation for persons not to possess firearms. Trial
Court Order, 7/22/14 at 1. The trial court imposed no further penalty on
(Footnote Continued Next Page)
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No post-sentence motions were filed. Appellant filed a timely notice of
appeal on July 23, 2014.4
On appeal, Appellant raises the following sole issue for our review.
Did not the trial court err in denying the
motion to suppress physical evidence, insofar as
[A]ppellant was stopped without reasonable
suspicion and, therefore, any abandonment of
physical items was coerced?
Appellant’s Brief at 3.
When reviewing a challenge to a trial court’s denial of a suppression
motion, we adhere to the following well-established standard of review.
We may consider only the Commonwealth’s evidence
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 record supports
the factual findings of the trial court, we are bound
by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the
suppression court’s conclusions of law.
Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).
Appellant argues that the initial encounter between Officer Clair and
Appellant constituted a seizure, requiring reasonable suspicion, because
Officer Clair ordered him to take his hands out of his pockets, and “[w]hen
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(Footnote Continued)
Appellant’s conviction for carrying firearms on public streets in Philadelphia.
Id.
4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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police officers give orders to civilians, it is apt to leave a reasonable person
to feel that he is not free to leave or disobey.” Appellant’s Brief at 8. He
further argues the trial court erred in denying his motion to suppress
because Appellant was not observed engaging in illegal or suspicious
conduct, and “the only justification [to stop Appellant] was an anonymous
call implicating someone wearing a shirt the same colors as [Appellant’s].”
Id. The Commonwealth counters that “Appellant’s encounter with police …
escalated [to an investigative detention] only after he ignored Officer Clair’s
request to take his hands out of his pockets and ran.” Commonwealth Brief
at 9 (italics in original). For the reasons that follow, we agree with the
Commonwealth.
The Fourth Amendment of the United States Constitution guarantees
that, “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated….” U.S. Const. amend IV. Similarly, the Pennsylvania Constitution
assures citizens of our Commonwealth that “[t]he people shall be secure in
their persons, houses, papers and possessions from unreasonable searches
and seizures….” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a
governmental intrusion varies with the degree of privacy legitimately
expected and the nature of the governmental intrusion.” Commonwealth
v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted).
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Interactions between law enforcement and citizens fall into one of the
following three categories.
The first of these 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 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.
Id. (citation omitted). When assessing whether an interaction escalates
from a mere encounter to an investigative detention, we employ the
following standard.
To guide the crucial inquiry as to whether or not a
seizure has been effected, the United States
Supreme Court has devised an objective test
entailing a determination of whether, in view of all
surrounding circumstances, a reasonable person
would have believed that he was free to leave. In
evaluating the circumstances, the focus is directed
toward whether, by means of physical force or show
of authority, the citizen-subject’s movement has in
some way been restrained. In making this
determination, courts must apply the totality-of-the-
circumstances approach, with no single factor
dictating the ultimate conclusion as to whether a
seizure has occurred.
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation
omitted), appeal denied, 65 A.3d 413 (Pa. 2013). Moreover, when this
Court evaluates whether an investigative detention is constitutional, the
following principles guide our decision.
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A police officer may detain an individual in order to
conduct an investigation if that officer reasonably
suspects that the individual is engaging in criminal
conduct. This standard, less stringent than probable
cause, is commonly known as reasonable suspicion.
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. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), appeal
denied, --- A.3d ---, 2015 WL 3938036 (Pa. 2015), citing Commonwealth
v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc), appeal denied,
990 A.2d 727 (Pa. 2010).
At the suppression hearing, the only evidence proffered by the
Commonwealth was the testimony of Officer Clair, and Appellant did not
submit any evidence. Officer Clair testified that he had been a Philadelphia
police officer for approximately 17 years, during which time he has made
hundreds of arrests. N.T., 5/27/14, at 7. His testimony further established
that the area where he encountered Appellant is known for drug activity and
shootings. Id. He testified, specifically regarding his interactions with
Appellant, as follows.
[The Commonwealth]:
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Q. [W]hy were you there patrolling that day?
[Officer Clair]:
A. Well, that day we were specifically in that
area … for an occurring rash of armed robbery, point
of gun.
Q. [On August 27, 2013], did you actually go
to that location earlier that day?
A. Earlier that day during our routine patrol in
that area, I did have an interaction with [Appellant].
There was a disorderly crowd that were yelling at
each other. We dispersed the crowd and gave them
warnings, and I actually wrote the paperwork on it.
Q. And after that incident, did everybody
disperse?
A. At that time, yes, they did.
Q. Okay. That was approximately 7:45 p.m.;
is that right?
A. That is correct.
Q. [Y]ou ended up going back to the location
at approximately 12:43 [a.m.]; is that right?
A. I did, yes.
Q. All right. Why did you go back there?
A. We were surveying the area for a person
with a gun, and that person with the gun was
wearing an orange shirt with blue stripes on it. I do
recall from earlier in the night, five hours prior to the
incident in which I had the interaction with
[Appellant], that he was wearing an orange shirt
with blue stripes on it. Actually, Your Honor, he’s
wearing that same shirt right now.
…
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Q. Now, when you went to that location and
saw this [Appellant], what happened then?
…
[The Commonwealth]: Oh. Let the record
reflect that [Appellant] is actually wearing the same
orange and blue-striped shirt.
[The trial court]: So noted.
…
A. At that time[,] I observed the male in the
courtyard. … It’s three different courtyards, I believe
[describing the area Appellant was observed].
So in the first courtyard closest to 40th Street,
I, along with my partner, [], we’re on bikes. I
approached this male, he has his hands in his
pocket, Your Honor. I asked him to remove his
hands from his pocket, at which time I believe he
said “why” and “no.” So I was getting off my bike.
As I was getting off my bike, he ran northbound
through the courtyard. I mounted my bike and gave
pursuit following him approximately ten feet behind
him the whole entire time while my partner went
down a small driveway, which would be mirroring
me.
So [Appellant] makes the right--he makes a
right again on foot going eastbound all along the
3900 block of Market Street. The whole entire time,
as I’m on my bike, with his right hand he’s clinching
his pocket. At one point[,] he pulls out an unknown
black object and he discards it behind two of the
townhouses into the common yard area over a small
wall. … I hear a clinking sound like metal on metal.
Continued to pursue the male to the front of that
property, which is another courtyard. … [M]y
partner meets [Appellant] in the front as I get him
from behind.
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At that point[,] we immediately take him into
custody, and I walk him back onto 3900 Market
Street. And I observed in my presence, my partner
went immediately into … where I heard the clinking
sound, which was later identified as a gun, in my
presence he recovered, but, yet, did not touch and
contacted Southwest Detectives for them to recover
it.
Q. Officer, you said he was holding his pocket
as he was running. Was that the same pocket his
hand was in when you were outside?
A. Outside, yeah. Initially, he had his hands in
both pockets, Your Honor, and he refused to take
them out.
Q. [D]id you talk to him multiple times or you
just talked to him that one time?
A. I initially gave him the order to remove his
hands for my safety, unaware if he had any
weapons. As soon as he said, “why” and “no,” and I
dismounted my bike, he took off, Your Honor.
Id. at 7-11.
In Commonwealth v. Coleman, 19 A.3d 1111 (Pa. Super. 2011),
this Court analyzed the nature of a police-citizen encounter under similar
circumstances. In Coleman, a police officer responded to a report of a
robbery in progress by two black males wearing green, hooded jackets under
black coats. Coleman, supra at 1114. The radio call indicated the
suspects had a gun and knife. Id. The officer observed the appellant, who
was a black male and fit the clothing description, and asked if he had a gun.
Id. The appellant responded that he did not have a gun, but he was
observed by the officer “fumbling” with his hands in his pocket. Id. The
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officer then asked the appellant to raise his hands, but the appellant would
not comply and continued to keep his hands in his pockets. Id. When the
appellant failed to comply with the officer’s request, the officer then brought
the appellant to his police van, while appellant resisted, and a struggle
ensued. Id.
In concluding the initial interaction between the appellant and police
officer was a mere encounter, this Court noted that, “[b]oth the United
States and Pennsylvania Supreme Courts have held that both the approach
of a police officer followed by questioning does not constitute a seizure.” Id.
at 1116 (citations omitted). We further concluded, “the fact that [the police
officer] told [the a]ppellant to take his hands out of his pockets did not turn
the encounter into a seizure.” Id. at 1117. Therefore, the seizure of the
appellant in that case did not occur until the police officer tried to move the
appellant to the police car. Id.
Herein, the evidence establishes that when Officer Clair first
approached Appellant, he asked Appellant to remove his hands for safety.
N.T., 5/27/14, at 11. Upon Appellant’s refusal, Officer Clair dismounted his
bike, and Appellant fled. Id. Under the totality of the circumstances, at this
point, we conclude Appellant was not subjected to an investigative
detention, but was engaged in a mere encounter with Officer Clair. See
McAdoo, supra; Coleman, supra.
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Following this brief encounter where Appellant refused to remove his
hands from his pockets, Appellant fled, and Officer Clair pursued. N.T.,
5/27/14, at 9. Therefore, at this point, a seizure occurred. See Ranson,
supra at 77 (observing “pursuit by police constitutes a seizure under the law
of this Commonwealth”). However, the uncontradicted evidence at the
suppression hearing established that at the time of the police pursuit of
Appellant, he was present in an area known for drug and gun activity at
approximately 12:43 a.m., he matched the distinctive clothing description of
a report of someone waving a gun, he had refused to remove his hands from
his pockets, and he fled in response to police presence. N.T., 5/27/14, at 7-
9. Further, while fleeing, Appellant was “clinching his pocket area.” Id. at
12. Under the totality of the circumstances, upon Appellant’s flight, we
conclude there was reasonable suspicion to believe Appellant was engaged in
criminal conduct. See Ranson, supra; see also In re D.M., 781 A.2d
1161, 1164 (Pa. 2001) (discussing the relevancy of flight in determining if
reasonable suspicion exists and noting, “it is evident that unprovoked flight
in a high crime area is sufficient to justify a Terry[5] stop under the Fourth
Amendment[]”); cf. Commonwealth v. Washington, 51 A.3d 895, 898-
899 (Pa. Super. 2012) (reviewing cases where the defendants “clearly … fled
from individuals who were recognized as police” and concluding the “crucial
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5
Terry v. Ohio, 392 U.S. 1 (1968).
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element” when evaluating flight in a high crime area creating a nexus
between running and criminal activity is that the defendant was “knowingly
running from police[]”).
Accordingly, we reject both Appellant’s argument that when Officer
Clair first approached Appellant, he was subjected to an investigative
detention without reasonable suspicion and Appellant’s argument that Officer
Clair’s only justification for stopping Appellant was an “anonymous radio
call.” Appellant’s Brief at 8. The totality of the circumstances demonstrate
that the police officers had reasonable suspicion to believe Appellant was
engaged in criminal activity when they began their pursuit of Appellant, and
we conclude the trial court did not err in denying Appellant’s motion to
suppress. See Ranson, supra. Therefore, we affirm the July 22, 2014
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2015
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Com. v. Robinson, D.
Combined Opinion