J-A20026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERON BROWN
Appellant No. 1679 WDA 2015
Appeal from the Judgment of Sentence Entered September 24, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0004313-2015
BEFORE: BOWES, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016
Appellant Jeron Brown appeals from the September 24, 2015
judgment of sentence entered in the Court of Common Pleas of Allegheny
County (“trial court”), following his bench conviction for flight to avoid
apprehension under 18 Pa.C.S.A. § 5126. Upon review, we affirm.
The facts and procedural history underlying this case are undisputed.
As recounted by the trial court:
On March 27, 2015, City of McKeesport police officer Bryan
Easter was on routine patrol on Fifth Avenue near the business
district of the City of McKeesport. At 8:55 a.m., a civilian
approached his marked vehicle and informed Officer Easter that
there was an individual attempting to open doors and windows
at the vacant BMW Motorcycle Shop, located in the 1600 block of
Ly[s]le Boulevard. The civilian witness provided a description of
the actor: a black male, dressed all in blue, on an orange
bicycle.
With that information, Offer Easter proceeded to the 1600
block of Ly[s]le Boulevard and encountered Appellant, who
matched the description provided by the civilian: a black male,
dressed in all blue, on an orange bicycle, riding westbound long
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Ly[s]le Boulevard.1 Officer Easter pulled into a gravel lot ahead
of Appellant and exited his vehicle to ask Appellant about what
the civilian had reported. Upon seeing Officer Easter and his
marked police vehicle, Appellant changed directions to avoid
Officer Easter, and crossed Ly[s]le Boulevard, traveling in the
opposite direction toward Fifth Avenue.
Officer Easter reentered his vehicle and followed Appellant
on Fifth Avenue. Appellant jumped off his bicycle, then jump
back on. Officer Easter wanted to talk to Appellant about what
had occurred at the BMW Motorcycle Shop, so he called out to
Appellant to “hold up a minute.” Appellant ignored Officer Easter
and rode away on his bicycle. Officer Easter continued to follow
Appellant and told Appellant to stop. Appellant eventually
complied by riding his bicycle over to the driver’s side of Officer
Easter’s vehicle. Appellant remained on his bicycle in the street.
Officer Easter exited his vehicle and directed Appellant to
the rear of the police vehicle to conduct a pat-down for officer
safety before speaking further with Appellant. Officer Easter felt
a wallet, which he asked Appellant to remove, and Appellant
complied. Officer Easter asked Appellant his name and date of
birth, which Appellant provided. Officer Easter entered
Appellant’s information into his vehicle’s computer system, at
which point Officer Easter discovered there was a warrant for
Appellant from the state of Delaware. Officer Easter verified that
the warrant was still active.
Once it was confirmed that the warrant was still active,
Officer Easter informed Appellant that he was under arrest, and
approached him to place him in handcuffs. Appellant nervously
fidgeted with his bicycle handlebars, breathed heavily, and
looked around. When Officer Easter grabbed Appellant’s left arm
to place it in a handcuff, Appellant pushed his bicycle into Officer
Easter. Appellant jumped over the bicycle and fled on foot
towards the entrance of UMPC McKeesport Hospital. Officer
Easter radioed for backup, and with Officer Herr and Sergeant
Rydzak, the three officers pursued Appellant into the hospital. A
chase ensued through the hospital hallways and up two flights of
stairs. Officer Herr was eventually able to catch and attempt to
detain Appellant. However, Appellant again resisted, refusing to
produce his hands, and Officer Herr had to forcibly restrain and
handcuff Appellant.
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1
Officer Easter encountered Appellant within a block and a half. N.T.
Suppression, 9/24/15, at 11.
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Trial Court Opinion, 2/16/15, at 3-6 (footnote and internal record citations
omitted). On the same day, Appellant was charged with, inter alia, flight to
avoid apprehension. On September 21, 2015, Appellant filed a motion to
suppress the discovery of his identity, claiming that Officer Easter’s
investigative detention of Appellant was bereft of reasonable suspicion and
therefore, constitutionally infirm. On September 24, 2015, following a
hearing, the trial court denied Appellant’s suppression motion. Shortly
thereafter, Appellant agreed to proceed immediately to a stipulated nonjury
trial. The trial court found Appellant guilty of flight to avoid apprehension,
among other things, and sentenced him to three to six months’
incarceration, and a concurrent period of six months’ probation. Appellant
timely appealed to this Court. Following Appellant’s filing of a Pa.R.A.P.
1925(b) statement of errors complained of on appeal, the trial court issued a
Pa.R.A.P. 1925(a) opinion.
On appeal,2 Appellant raises only a single issue for our review, namely
whether “the trial court err[ed] when it determined Officer Easter possessed
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2
To the extent Appellant argues that Officer’s Easter’s pat-down search was
illegal, such argument is waived. See Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”). Here, as the Commonwealth notes and as is confirmed by our
review of the record, Appellant limited his argument in the trial court to
whether Officer Easter had reasonable suspicion to conduct an investigatory
detention. See N.T. Suppression, 9/24/15, at 3. In other words, Appellant
did not argue the propriety of the pat-down search under Terry v.
Ohio, 392 U.S. 1 (1968).
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reasonable suspicion to detain [Appellant] following an anonymous tip[.]”
Appellant’s Brief at 5.
In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those
facts are correct. When reviewing the rulings of a [trial] court,
the appellate court considers only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. When the record supports the findings of the [trial]
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our
scope of review is limited to the evidence presented at the suppression
hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution protect the people from
unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d
298, 302 (Pa. 2014) (citation omitted). The Lyles Court explained:
Jurisprudence arising under both charters has led to the
development of three categories of interactions between citizens
and police. The first, a “mere encounter,” does not require any
level of suspicion or carry any official compulsion to stop and
respond. The second, an “investigatory detention,” permits the
temporary detention of an individual if supported by reasonable
suspicion. The third is an arrest or custodial detention, which
must be supported by probable cause.
In evaluating the level of interaction, courts conduct an
objective examination of the totality of the surrounding
circumstances. . . . The totality-of-the-circumstances test is
ultimately centered on whether the suspect has in some way
been restrained by physical force or show of coercive authority.
Under this test, no single factor controls the ultimate conclusion
as to whether a seizure occurred—to guide the inquiry, the
United States Supreme Court and [our Supreme] Court have
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employed an objective test entailing a determination of whether
a reasonable person would have felt free to leave or otherwise
terminate the encounter. What constitutes a restraint on liberty
prompting a person to conclude that he is not free to leave will
vary, not only with the particular police conduct at issue, but
also with the setting in which the conduct occurs.
[Our Supreme] Court and the United States Supreme
Court have repeatedly held a seizure does not occur where
officers merely approach a person in public and question the
individual or request to see identification. Officers may request
identification or question an individual so long as the officers do
not convey a message that compliance with their requests is
required. Although police may request a person’s identification,
such individual still maintains the right to ignore the police and
go about his business.
Id. at 302-03 (internal citations and quotation marks omitted). Instantly,
the parties do not dispute that Officer Easton’s interaction with Appellant
rose to the level of investigative detention, requiring reasonable suspicion.3
It is settled that reasonable suspicion necessary for investigative
detentions
is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with
information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations
omitted). “In order to justify an investigative detention, the police must
have reasonable suspicion that criminal activity is afoot. Reasonable
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3
The law governing Terry stops, i.e., stops and searches based on
reasonable suspicion, is the same under both the federal and Pennsylvania
constitutions. See In re D.M., 781 A.2d 1161, 1163 (Pa. 2001) (D.M. II)
(noting that “Pennsylvania courts have consistently followed Terry in stop
and frisk cases, including those in which the appellants allege protections
pursuant to Article 1, Section 8 of the Pennsylvania Constitution.”).
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suspicion must be based on specific and articulable facts, and it must be
assessed based upon the totality of the circumstances viewed through the
eyes of a trained police officer.” Commonwealth v. Williams, 980 A.2d
667, 672 (Pa. Super. 2009) (citation omitted), appeal denied, 990 A.2d
730 (Pa. 2010). Thus, “[t]he determination of whether an officer had
reasonable suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be considered in
light of the totality of the circumstances.” Commonwealth v. Holmes, 14
A.3d 89, 96 (Pa. 2011) (emphasis added). In assessing the totality of the
circumstances, a court must give weight to the inferences that a police
officer may draw through training and experience. Id. at 95. Reasonable
suspicion does not require that the activity in question must be
unquestionably criminal before an officer may investigate further. Davis,
102 A.3d at 1000 (citations omitted). “Rather, the test is what it purports to
be—it requires a suspicion of criminal conduct that is reasonable based upon
facts of the matter.” Id. (citation and emphasis omitted).
Instantly, we find instructive D.M. II and Commonwealth v. Walls,
53 A.3d 889 (Pa. Super. 2012), in deciding whether Officer Easter possessed
reasonable suspicion to detain Appellant.
In D.M. II, a police officer received a radio call regarding a man with a
gun at 28th Street and Cecil B. Moore Avenue in Philadelphia. D.M. II, 781
A.2d at 1162. The officer was only one block from the location at the time
of the call. The anonymous tip described the man as a “black male, wearing
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a white t-shirt, blue jeans and white sneakers.” Id. The officer arrived at
the scene and saw the appellant, who matched the description given by the
anonymous tip. Id. The officer exited his vehicle and told the appellant “to
come over.” Id. The appellant, however, took off running instead. Id.
Eventually, backup arrived and the appellant found himself cornered
between two police cars. Id. The officer ordered the appellant to put his
hands on the hood of the car in front of him and proceeded to pat the
appellant down for officer safety. Id. The officer recovered a .32 caliber
handgun that fell out of the appellant’s pant leg. Id. Given the facts, our
Supreme Court determined that the officer had the reasonable suspicion
necessary to stop the appellant. Id. at 1164-65. In so doing, the Supreme
Court noted that under Illinois v. Wardlow, 528 U.S. 119 (2000),
“unprovoked flight could be considered among the relevant contextual
considerations, since ‘nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion’ and ‘headlong flight—whenever it occurs—
is the consummate act of evasion.’” D.M. II, 781 A.2d at 1164 (citing
Wardlow, 528 U.S. at 124).
In Walls, a police officer received information over his radio that a
black male wearing a black coat and black jeans was observed at an
intersection carrying a gun. The officer stopped an individual, who matched
the description of the suspect with regard to gender, race, and clothing one-
half block away from the identified location. After seeing the officer, the
individual fled. Walls, 53 A.3d at 894. Relying upon D.M. II and
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Wardlow, the Walls Court concluded that an unprovoked flight, even
when not in a high crime area, combined with an individual’s proximity to
the subject location and his match to the description of the suspect, gave
“rise to reasonable suspicion that criminal activity was afoot.” Id. at 894
(emphasis added).
As recited earlier, Officer Easter received an in-person, face-to-face,
tip from a civilian that a black male attired in blue and on an orange bicycle
was attempting to open doors and windows at a vacant BMW Motorcycle
Shop. As the suppression transcript reveals, Officer Easter testified that the
shop “has been unoccupied for a long period of time.” N.T. Suppression,
9/24/15, at 6. With this information in hand, Officer Easter proceeded to
investigate the tip. Within close proximity of the vacant shop, Officer Easter
spotted Appellant who matched the description provided by the in-person
tipster. Specifically, when Officer Easter spotted Appellant, a black male, he
was dressed in blue and rode an orange bicycle. Upon seeing Officer Easter,
Appellant exhibited evasive behavior in that he crossed Lysle Boulevard to
travel in the opposite direction toward Fifth Avenue. When Officer Easter
directed Appellant to stop, he initially disregarded Officer’s Easter’s direction
and continued to ride away on bicycle. Eventually, Appellant complied with
Officer Easter’s command by riding his bicycle over to the driver’s side of
Officer’s Easter’s vehicle.
Based on these facts, this case is distinguishable from D.M. II and
Walls only in one respect. Here, unlike the anonymous telephone calls in
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D.M. and Walls, Officer Easter received an in-person, face-to-face tip from
a citizen who conveyed his first-hand account of what he had witnessed at
the vacant BMW Motorcycle Shop.4 Because of the in-person, face-to-face
nature of the tip, we conclude that it carried a greater indicia of reliability
than anonymous tips received over the telephone. See United States v.
Valentine, 232 F.3d 350, 354, 357 (3d. Cir. 2000) (noting that an in-person
tip based on first-hand account is more reliable than an anonymous
telephone call). Officer Easter here could assess the informant’s credibility
as he spoke, likely knew what the informant looked like, and had some
opportunity to find the informant if the tip did not pan out. Id.
In all other respects, we discern no difference between this case and
D.M. II and Walls. Like the anonymous tip in D.M. II and Walls, the tip
here was corroborated by Officer Easter to the extent that Officer Easter
located Appellant, who matched the physical description, clothing and the
orange bicycle, in the vicinity of the vacant BMW Motorcycle Shop. As
stated, Officer Easter received a first-hand account that a black male attired
in blue with an orange bicycle was attempting to open doors and windows at
the vacant shop. Potential innocent explanations for Appellant’s conduct at
the vacant BMW Motorcycle Shop do not negate the reasonableness of
Officer Easter’s suspicion of criminal activity. See Davis, supra, at 1000.
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4
Like in D.M. II, here the record is silent as to whether Officer Easter
encountered Appellant in a high-crime area.
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When Officer Easter spotted Appellant who matched the specific description
of the individual provided face-to-face by the tipster, Appellant evaded
Officer Easter by crossing the street to travel in the opposite direction.
Thereafter, when Officer Easter demanded that Appellant stop, Appellant
initially disregarded his command and rode away on his bicycle. Given the
totality of the circumstances here, and consistent with our holdings in D.M.
II and Walls, we are constrained to agree with the trial court that Officer
Easter possessed the requisite reasonable suspicion to stop Appellant.
Accordingly, the trial court did not err in denying Appellant’s suppression
motion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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Com. v. Brown, J.
Combined Opinion