J-S53025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN BLENMAN,
Appellant No. 1430 EDA 2016
Appeal from the Judgment of Sentence April 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013908-2012
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED September 5, 2017
Appellant, Kevin Blenman, appeals from the judgment of sentence
entered on April 14, 2016, following his bench trial convictions for persons
not to possess a firearm, carrying a firearm on public streets in Philadelphia,
and firearms not to be carried without a license.1 We affirm.
The trial court summarized the facts of this case as follows:
On November 5, 2012, Philadelphia police officer Jeffrey Opalski
[(Officer Opalski)], along with his partner Officer Mundrick,[2]
were on patrol in an unmarked police car in plain clothes. At the
time, Officer Opalski had been a police officer for two and a half
years with ten [firearm-related] arrests, along with specific
training in firearms and the methods in which they are carried on
____________________________________________
1
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
2
We were unable to determine Officer Mundrick’s first name from the
certified record.
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a person. The officers were traveling along the 5100 block of
Viola St[reet] in Philadelphia, when they observed [Appellant]
standing in front of an abandon[ed] building. Officer Opalski
testified that drug sales are typically conducted in and around
abandoned properties. The officers were patrolling in that
specific area because there were reports of drug sales and gun
violence associated with rival drug gangs. As the officers drove
down Viola St[reet], [Appellant] looked in their direction, turned
and walked through an alleyway next to an abandoned house.
The officers then continued down Viola St[reet], circled the block
a few times, and again spotted [Appellant] on a nearby block.
At this time, he was walking with a noticeable limp and had a
large bulge in the front area of his waistband. The officers
stopped their car, exited and identified themselves as police
officers. Immediately [Appellant] grabbed his waistband area
and ran from the officers. After running for about a block, the
officers observed [Appellant] remove a large silver revolver from
his waistband and discard it in a pile of trash bags. He was
arrested shortly thereafter.
[Appellant] was taken to a local hospital for some minor injuries
and then released back to police custody around 2:00 a.m. the
following day. [Appellant] was initially too groggy to be
interviewed at that time. On November 6, 2012, at around 3:20
a.m.[,] Detective [Matthew] Maurizio read [Appellant] his
Miranda[3] warnings and conducted a post-arrest interview.
[Appellant] did not appear to be in any distress at that point,
was not injured, and was lucid in his recollection. [Appellant]
then gave a very detailed statement of his activities that night,
including where and from whom he received the gun and what
he was intending to do with it. He read and signed the
statement along with his Miranda warnings.
Trial Court Opinion, 11/14/2016, at 2-3 (record citations omitted).
Prior to trial, Appellant filed a motion to suppress the physical
evidence recovered, as well as his subsequent statement to police. The trial
court held a suppression hearing on December 1, 2014 and denied relief.
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3
Miranda v. Arizona, 384 U.S. 436 (1966).
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On February 3, 2016, the trial court held a bench trial and convicted
Appellant of the aforementioned firearm offenses. On April 14, 2016, the
trial court sentenced Appellant to an aggregate term of two and one-half to
five years of imprisonment followed by five years of probation. This timely
appeal resulted.4
On appeal, Appellant presents the following issue for our review:
Did not the lower court err in denying Appellant’s motion to
suppress physical evidence and his statement obtained in
violation of the 4th Amendment of the United States Constitution,
and Article I, Section 8 of the Pennsylvania Constitution, as said
evidence and statement were the fruits of an unconstitutional
stop unsupported by reasonable suspicion?
Appellant’s Brief at 3.
In sum, Appellant argues:
When initially observed by police, Appellant was standing in front
of an abandoned house, doing nothing illegal or suspicious. He
then walked away; again, an action neither illegal [n]or
suspicious. Officer Opalski decided, solely on the basis that the
house where Appellant was standing was abandoned, to try to
find him, to do so [by] circling the block not once but “a few
times,” and expanding his area of search. Finally he observed
Appellant at a busy intersection, this time doing nothing but
walking in what the officer described as “a labored manner,” with
a bulge in his waistband. Officer Mundrick thereupon exited the
police vehicle, identifying himself, and demanding that Appellant
stop. Although Appellant fled, at the point when Officer
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4
Appellant filed a timely notice of appeal on May 11, 2016. On June 20,
2016, the trial court issued an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on July 12, 2016. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on November 14, 2016.
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Mundrick made his demand Appellant was unlawfully seized, and
the firearm ultimately recovered[, and his subsequent
statements to police, were] fruit of the unlawful seizure.
Because Appellant was stopped illegally, the lower court erred in
denying his motion to suppress the [] evidence [obtained] from
the illegal stop.
Id. at 9-10.
Our standard of review for the denial of a suppression motion is
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. When reviewing rulings of a suppression court we must
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 legal conclusions drawn
therefrom are in error.
In re M.D., 781 A.2d 192, 195 (Pa. Super. 2001) (citation omitted).
In addition,
it is within the suppression court's sole province as factfinder to
pass on the credibility of witnesses and the weight to be given
their testimony. The suppression court is also entitled to believe
all, part or none of the evidence presented. Finally, at a
suppression hearing, the Commonwealth has the burden of
establishing by a preponderance of the evidence that the
evidence was properly obtained.
Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) (en
banc).
We have further determined:
Article I, § 8 of the Pennsylvania Constitution and the Fourth
Amendment of the United States Constitution afford protections
against unreasonable searches and seizures. Among the
protections is the requirement that an officer have reasonable
suspicion before an investigatory stop.
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Our [S]upreme [C]ourt has interpreted Article I, § 8 protection
more broadly than the Fourth Amendment and has found that a
seizure occurs when an officer gives chase. Under Pennsylvania
law, any items abandoned by an individual under pursuit are
considered fruits of a seizure. Those items may only be received
in evidence when an officer, before giving chase, has at least the
reasonable suspicion necessary for an investigatory stop. Stated
another way, when one is unconstitutionally seized by the police,
i.e. without reasonable suspicion or probable cause, any
subsequent flight with the police in pursuit continues the seizure
and any contraband discarded during the pursuit is considered a
product of coercion and is not admissible against the individual.
In deciding whether reasonable suspicion exists for an
investigatory stop, our analysis is the same under both Article I,
§ 8 and the Fourth Amendment.
The fundamental inquiry is an objective one, namely, whether
the facts available to the officer at the moment of the intrusion
warrant a man of reasonable caution in the belief that the action
taken was appropriate. This assessment, like that applicable to
the determination of probable cause, requires an evaluation of
the totality of the circumstances, with a lesser showing needed
to demonstrate reasonable suspicion in terms of both quantity or
content and reliability.
Among the factors to be considered in forming a basis for
reasonable suspicion are tips, the reliability of the informants,
time, location, and suspicious activity, including flight.[5]
While a tip can be a factor, an anonymous tip alone is
insufficient as a basis for reasonable suspicion. Likewise,
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5
Furthermore, in examining factors giving rise to reasonable suspicion, “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.”
Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (internal
citation and original brackets omitted). “A police officer cannot reach such a
conclusion based upon an ‘unparticularized suspicion’ or ‘hunch.’”
Commonwealth v. Arch, 654 A.2d 1141, 1144 (Pa. Super. 1995) (citation
omitted).
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presence in a high crime area alone or flight alone does not form
the basis for reasonable suspicion. However, a combination of
these factors may be sufficient.
* * *
Case law has established that certain facts, taken alone, do not
establish reasonable suspicion. However, a combination of these
facts may establish reasonable suspicion.
Id. at 196–197 (internal citations, quotations, and original brackets
omitted).
Here, the trial court concluded:
[T]he Commonwealth established by a preponderance of the
evidence that officers had reasonable suspicion to attempt to
stop [Appellant]. […T]he officers observed [Appellant] standing
in front of an abandon[ed] house in a known violent crime area.
They drove past him and he turned around and went down an
alleyway. […T]hey [again] observed him turn and walk[] away.
Additionally, officers observed a very large bulge in his
waistband area that was indicative of a large handgun.
* * *
The officers’ [knowledge and] experience in that area making
arrests, training in the handling and carrying of firearms,
[Appellant] turning and walking away from officers and a large
bulge in his waistband area provided sufficient articulable facts
which gave officers reasonable suspicion to stop him in an
investigatory detention.
Trial Court Opinion, 11/14/2016, at 5.
Based upon our standard of review and careful examination of the
certified record, we agree with the trial court’s assessment and discern no
abuse of discretion in denying suppression. At the time of the incident,
Officer Opalski had two and one-half years of experience as a police officer
and he had made approximately ten arrests involving firearms violations.
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N.T., 12/1/2014, at 8, 25. Additionally, he previously completed
“improvised and concealed weapons training” through the Institute of Law
Enforcement Education. Id. at 33. Officer Opalski testified that the officers
were on patrol in an area known for narcotics trafficking, at 1:00 a.m.,
where there had been three shootings the week prior to this incident. Id. at
9. The prior shootings were linked to drug sales in front of the abandoned
property, already known to police, where Appellant was seen first standing.
Id. at 12. Appellant looked in Officer Opalski’s direction, turned, and walked
into an alleyway. Id. When Officer Opalski saw Appellant again, he noticed
Appellant “was laboring with his walk as if something [] heavy [was] in his
waistband” which, in his experience and training, was “the typical location
for an illegal firearm to be carried.” Id. at 16. Officer Opalski opined that
“most guns are carried illegally in the front of [the] waistband without a
holster.” Id. He also testified that the location of the bulge and its size led
him to believe that Appellant could be carrying a large firearm. Id. at 17.
Based upon the time and location of the incident, Appellant’s
suspicious behavior, the officer’s training and experience, and the
identification of a bulge in Appellant’s waistband (a characteristic place to
conceal an illegal firearm) before stopping Appellant, Officer Opalski had
reasonable suspicion to believe Appellant was engaged in criminal activity.
Contrary to Appellant’s assertions, the totality of the circumstances led
Officer Opalski to believe that Appellant possessed a firearm in violation of
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18 Pa.C.S.A. § 6106(a)(1). Thus, the Commonwealth met its burden of
proof and suppression was not warranted.
Finally, the case law upon which Appellant relies does not compel a
different result. Appellant principally relies upon our decision in
Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super. 1991). See
Appellant’s Brief at 13-14. In that case, police officers in plain clothes in an
unmarked car approached an intersection where four or five individuals were
standing on a corner. Martinez departed in one direction and the others
went another. The police drove alongside Martinez and observed her
“holding her hands in the front of her coat, leaning forward, as if to be
holding something, leaning forward, walking quickly up the street.”
Martinez, 588 A.2d at 515. When the police ordered Martinez to put her
hands on the police vehicle, a bag containing contraband fell from her coat.
We noted that the trial court “mixed together facts of events occurring both
before and as a result of the stop” and “seemingly believed that Martinez
brought the search and seizure upon herself by ‘drawing attention to
herself.’” Id. at 516 (emphasis in original). We concluded that the only
“articulable facts attributable to Martinez” was that she “walked quickly away
from a street corner, at 12:20 a.m.” and “[s]he was holding her hands in the
front of her coat and walking quickly up the street.” Id.
In stark contrast to Martinez, Officer Opalski articulated his specific
observation that, prior to stopping Appellant, he saw a bulge in Appellant’s
waistband which, in his experience and training, led him to believe that
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Appellant was carrying a large firearm given the size and the location of the
bulge. In Martinez, we said that the police had little more than an
unparticularized suspicion or hunch that the defendant was engaged in
criminal activity when they observed her holding her coat out in front of her.
Martinez could have just as easily been holding any number of innocuous
items at the time of the seizure. Here, however, Officer Opalski’s
observations showed that, prior to stopping Appellant, he was able to state,
with specific detail, his belief that Appellant was carrying a gun, a violation
of 18 Pa.C.S.A. § 6106(a)(1). Moreover, in Martinez, we recognized that
the trial court “mixed together facts of events occurring both before and as a
result of the stop.” Id. at 516. In the case sub judice, however, the
undisputed testimony shows that Officer Opalski’s observations regarding
the location and size of the bulge in Appellant’s waistband led him to believe
that Appellant possessed a firearm, which, in turn, prompted him to detain
Appellant.
As such, we are persuaded that this case stands on all fours with our
recent en banc decision in Commonwealth v. Carter, 105 A.3d 765, 766
(Pa. Super. 2014) (en banc), where we concluded, on very similar facts, that
the officer’s objective and particularized suspicion legitimately supported the
challenged investigatory detention.6 See Carter, 105 A.3d at 774-775
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6
We reject Appellant’s suggestion that Carter is distinguishable since “no
bulge [was] observed on Appellant at initial view.” See Appellant’s Brief at
(Footnote Continued Next Page)
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(police officer had reasonable suspicion for investigatory detention, where
the defendant was standing on street corner in a high-crime area at night,
had a weighted and angled bulge in his coat pocket, was alerted to the
officer's presence and intentionally turned his body away several times to
conceal the bulge in his coat pocket, and the officer observed the defendant
walking away from known drug corner when officer repeatedly circled the
area). For each of the foregoing reasons, we hold that Appellant is not
entitled to relief on his suppression claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2017
_______________________
(Footnote Continued)
16. The only relevant fact is that Officer Opalski observed the bulge before
commencing the stop.
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Com. v. Blenman, K.
Combined Opinion