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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMIL LUTE JONES, :
:
Appellant : No. 1329 WDA 2016
Appeal from the Judgment of Sentence July 27, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-26-CR-0002076-2015
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 16, 2017
Jamil Lute Jones (Appellant) appeals from the judgment of sentence
imposed on July 27, 2016, after he was found guilty of one count of firearms
not to be carried without a license. We affirm.
After being charged with the aforementioned crime, Appellant filed an
omnibus pre-trial motion to suppress evidence. We summarize the following
facts based upon Officer Cheryl Frey’s testimony at the suppression hearing.
During her shift on July 5, 2015, Officer Frey saw Appellant, two other adults
and a small child crossing the street on foot. N.T., 11/7/2016, at 5-7.
Appellant was wearing a red vest. Id. at 7. Officer Frey recognized
Appellant’s face but could not recall his name. Id. at 13. She thought his
name might be Laquan Martin. Id. During the roll call prior to her shift, the
names of Appellant and Laquan Martin were listed as having active warrants.
*Retired Senior Judge assigned to the Superior Court.
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Id. at 7, 13. Officer Frey got out of her vehicle and asked Appellant for his
identification. Id. at 8. Appellant asked Officer Frey why she was stopping
him, and Officer Frey responded that she believed there was a warrant for
his arrest. Id. Appellant took off his vest and handed it to a friend before
giving Officer Frey his identification. Id. After confirming through dispatch
that there was a warrant, Officer Frey handcuffed Appellant and retrieved
Appellant’s vest from his friend, who still had the vest draped over his arm.
Id. at 8-9.
While Officer Frey was walking Appellant back to the vehicle, Appellant
asked Officer Frey why she took the vest, claiming it belonged to his friend.
Id. at 23-24. Officer Frey told him she was suspicious of why he would hand
it to his friend when all she wanted was his identification. Id. at 12, 18, 23-
24. Appellant then told Officer Frey that there was a firearm in the vest.
Id. at 9, 23-24. According to Officer Frey, she did not ask Appellant any
questions to prompt this statement. Id. at 11, 22. Officer Frey placed
Appellant in the back of her vehicle and laid the vest on the ground. Id. at
9. When back-up officers arrived, they retrieved a .380 automatic Ruger
from the vest and unloaded it. Id. at 9-10.
In the written suppression motion, Appellant had argued, inter alia,
that Officer Frey did not have probable cause to search or seize the vest
Appellant had been wearing prior to his arrest. Motion, 10/27/2015, at ¶¶
15-17. During the suppression hearing, however, Appellant confined his
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argument to the issue of whether Officer Frey had reasonable suspicion to
stop Appellant in the first place or to call dispatch to determine if he had a
warrant, arguing that in both cases she did not. N.T., 3/2/2016, at 24-28.
Following Officer Frey’s testimony, the suppression court denied the motion,
stating that it found Officer Frey’s testimony to be entirely credible. Id. at
29-30.
A jury trial was held on March 21 and 22, 2016, and Appellant was
found guilty of the aforementioned charge.1 On July 27, 2016, Appellant
was sentenced to two-and-a-half to six years of incarceration. Following the
denial of his post-sentence motion, Appellant timely filed a notice of appeal.
Appellant, the suppression court, and the sentencing court complied with
Pa.R.A.P. 1925.
On appeal, Appellant raises two issues.
[1] Whether the trial court erred in denying [] Appellant’s
omnibus pretrial motion to suppress evidence?
[2] Whether [] Appellant’s sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objective of the
Pennsylvania sentencing code?
Appellant’s Brief at 4.
We consider the following regarding Appellant’s first issue.
1
He was also found guilty of one count of persons not to possess, use,
manufacture, control, sell or transfer firearms, but the trial court granted
Appellant’s motion for judgment of acquittal on this charge at the time of
sentencing. N.T., 7/27/2016, at 9-10.
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Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. [W]e may consider 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. Where the record supports the findings of the suppression
court, we are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based upon the
facts.
Commonwealth v. Prisk, 13 A.3d 526, 530 (Pa. Super. 2011) (quoting
Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa. Super. 2008) (en
banc)).
On appeal, Appellant argues that Officer Frey lacked reasonable
suspicion to stop him because she had no reasonable belief that criminal
activity was afoot. Appellant’s Brief at 9. According to Appellant, Officer
Frey’s “hunch” that Appellant was one of two people who had active
warrants was insufficient to justify the initial stop of Appellant; therefore,
the firearm that was discovered later must be suppressed as fruit of the
poisonous tree. Id.
In determining the propriety of the interactions between Officer Frey
and Appellant, the following principles are relevant.
The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals
from unreasonable searches and seizures. In Fourth
Amendment jurisprudence, there are three categories of
interactions between citizens and the police:
The first [category] is a “mere encounter” (or request for
information) which need not be supported by any level of
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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.
Commonwealth v. Parker, __ A.3d __, at *3 (Pa. Super. 2017) (citations
omitted).
In evaluating the level of interaction, courts conduct an objective
examination of the totality of the surrounding circumstances. We
are bound by the suppression court’s factual findings, if
supported by the record; however, the question presented—
whether a seizure occurred—is a pure question of law subject to
plenary review.
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 [the Pennsylvania Supreme] Court have
employed an objective test entailing a determination of whether
a reasonable person would have felt free to leave or otherwise
terminate the encounter. [W]hat 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.
Commonwealth v. Lyles, 97 A.3d 298, 302–03 (Pa. 2014) (citations
omitted).
Here, the suppression court determined that Officer Frey’s initial stop
of Appellant to request identification was a permissible Terry2 stop due to
her specific recognition of Appellant as someone with a warrant, even if she
2
Terry v. Ohio, 392 U.S. 1 (1968).
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mismatched his face with the name of someone else. Furthermore, the
suppression court found that Officer Frey legally continued to detain
Appellant when she called dispatch to confirm that he had a warrant. N.T.,
3/2/2016, at 29-30.
While “the mere request for identification does not in itself create an
investigatory detention,” an encounter becomes an investigatory detention
when “the request for identification is coupled with a restraint of liberty,
physical force or show of authority.” Commonwealth v. Baldwin, 147
A.3d 1200, 1204 (Pa. Super. 2016). Officer Frey informed Appellant that
she was requesting his identification because she believed he had a warrant
out for his arrest. In that circumstance, a reasonable person would not feel
free to leave. See Parker, __ A.3d at *6 (holding that when a police officer
requests identification along with a suggestion that the person is suspected
of criminal wrongdoing, the situation rises to the level of an investigatory
detention). Likewise, a reasonable person would not feel free to leave while
a police officer possesses the person’s identification to check for outstanding
warrants. See Commonwealth v. Hudson, 995 A.2d 1253, 1259 (Pa.
Super. 2010) (“Officer Gonzalez effectuated an investigative detention of
Hudson at the time that Officer Gonzalez took and maintained possession of
Hudson’s identification. In such a situation, no reasonable person would
have felt free to terminate the encounter and depart the scene.”). Thus,
Officer Frey needed to have reasonable suspicion that criminal activity was
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afoot to justify her initial stop of Appellant and his detention while she
investigated her suspicion that he had a warrant. See Parker, __ A.3d at
*6.
To effectuate an investigative stop, law enforcement officers must
have “a particularized and objective basis for suspecting the particular
person stopped of criminal activity” and the officer must be able to
“articulate [the basis as] something more than an inchoate and
unparticularized suspicion or hunch.” Commonwealth v. Carter, 105 A.3d
765, 768–69 (Pa. Super. 2014). We agree with the trial court that Officer
Frey’s specific recognition of Appellant as someone with an active warrant,
even if she initially mismatched his face with the name of someone else,
constituted reasonable suspicion justifying the initial stop to obtain
Appellant’s identification and the brief detention to confirm that he did,
indeed, have an active warrant. Thus, because the detention of Appellant
was lawful, the trial court did not err by failing to suppress the firearm that
was later discovered after the detention.
Turning to Appellant’s second issue regarding the discretionary aspects
of his sentence, we observe the following.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his [or her] sentence
must invoke this Court’s jurisdiction by satisfying a four-part
test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
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902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Appellant filed a timely post-sentence motion and a notice of
appeal, and included a statement pursuant to Rule 2119(f) in his brief. We
now consider whether he has raised a substantial question for our review.
In his Rule 2119(f) statement, Appellant alleges the sentencing court
failed to consider the factors set forth in 42 Pa.C.S. § 9721(b). Appellant’s
Brief at 7. “An averment that ‘the trial court failed to consider relevant
sentencing criteria, including the protection of the public, the gravity of the
underlying offense and the rehabilitative needs of Appellant, as 42 Pa.C.S.[ ]
§ 9721(b) requires[,]’ presents a substantial question for our review….”
Commonwealth v. Derry, 150 A.3d 987, 992 (Pa. Super. 2016) (citing
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012)).
However, in the argument section of his brief, Appellant contends that
the trial court failed to consider adequately mitigating factors in the record,
and thus his sentence is excessive and an abuse of discretion. Appellant’s
Brief at 11. This claim does not raise a substantial question. See
Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013)
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(“[A]rguments that the sentencing court failed to consider the factors
proffered in 42 Pa.C.S. § 9721 does present a substantial question [but] a
statement that the court failed to consider facts of record, though
necessarily encompassing the factors of [Section] 9721, [does not].”).
Moreover, the claim included in his Rule 2119(f) statement is not developed
in his argument and is waived.
Nevertheless, even if Appellant had satisfied the requirements for
review of his discretionary aspects of sentencing claim, we would conclude
that he would not be entitled to relief because the trial court had the benefit
of a pre-sentence investigation report. See Commonwealth v. Boyer, 856
A.2d 149, 154 (Pa. Super. 2004) (“[W]here the sentencing judge had the
benefit of a presentence investigation report, it will be presumed that he or
she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.”). Moreover, the sentencing court articulated specific reasons for
sentencing Appellant as he did, including the significant problem of gun
violence in Appellant’s community, Appellant’s chronic alcohol and drug use
history, and Appellant’s testing positive for alcohol, THC, cocaine and
amphetamines while under court supervision, all of which indicate that the
sentencing court considered the protection of the public, the gravity of the
underlying offense and the rehabilitative needs of Appellant in fashioning the
sentence. Sentencing Court Opinion, 11/3/2016, at 5.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
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