J-S61018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.P., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: K.P.                            :
                                               :
                                               :
                                               :
                                               :   No. 2326 EDA 2016

               Appeal from the Dispositional Order July 18, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-JV-0000423-2016


BEFORE:      LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                            FILED NOVEMBER 21, 2017

        K.P., a minor, appeals from the dispositional order of July 18, 2016,

following his adjudication of delinquency for possession of a firearm by a

minor.1 We affirm.

        The relevant facts and procedural history are as follows:

        On March 1, 2016 at approximately 5:50 PM, Philadelphia Police
        Officer Sweeney (Badge #5412, 17th District) observed a large
        group of ten to fifteen males blocking the entrance to the front
        door of a market, located at the 2100 block of Morris Street.
        Officer Sweeney was in a vehicle with Officer Velasquez. The
        officers approached the corner and both officers exited their
        vehicle. K.P. turned away from the police and grabbed his
        waistband. Officer Sweeney then asked K.P. to stop. As the police
        walked toward K.P., K.P. began to flee and Officer Sweeney gave
        chase on foot, while his partner pursued in the police vehicle.

        Officer Sweeney then observed K.P. remove a handgun from his
        waistband, as they turned the corner into an alley. Officer

____________________________________________


1
    18 Pa.C.S.A. § 6110.1


*    Retired Senior Judge assigned to the Superior Court.
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      Sweeney observed K.P. holding the handgun, and saw K.P. throw
      the handgun into the backyard of 2008 Morris Street.

      Officer Sweeney was in full uniform. Prior to this incident, Officer
      Sweeney had made one to two arrests in that area. Officer
      Sweeney described the area as a “high crime area,” stating that
      there have been shootings and a homicide within a block or two
      of that area. The homicide and shootings had occurred within six
      months of this incident. There had also been roll call complaints
      regarding said area. The handgun was recovered within five yards
      from where the [Appellant] was arrested.

      Officer Sweeney did not receive any specific call to go to that
      location, nor was he responding to any specific complaint. Officer
      Sweeney observed that the young males were violating the city
      ordinance for blocking the front entrance of a store or blocking the
      sidewalk. Officer Sweeney did not issue any citation for said
      violation. Officer Sweeney only told K.P. to stop after K.P. began
      to hide his body from police and walk away. Officer Sweeney did
      not unstrap his weapon, nor did he have his hand on his weapon,
      at the time that he told K.P. to stop. Based on his observations
      of K.P., Officer Sweeney believed that K.P. had a gun. Once K.P.
      turned into the alley, K.P. was trapped in the alley.

      The parties stipulated that the firearm recovered from the ground
      near K.P. was operable at the time that it was recovered, and that
      K.P. did not have a license to carry a firearm in the Commonwealth
      of Pennsylvania. The parties further stipulated that K.P.’s mother,
      A.P. and K.P.’s grandfather, A.G., that they are familiar with K.P.’s
      reputation in the community, and that K.P. has a reputation for
      being peaceful and law-abiding.

Trial Court Opinion, 1/13/17 at 2-3 (citations omitted).

      On March 9, 2016, Appellant filed a motion to suppress all physical

evidence, arguing that Appellant’s arrest was illegal as the officers did not

have probable cause or reasonable suspicion for detaining him. Appellant’s

Motion to Suppress at 1 (unpaginated). On March 29, 2016, a hearing was

held on Appellant’s motion. In May 2016, the trial court denied Appellant’s

motion to suppress and adjudicated Appellant delinquent.        Disposition was

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deferred until July 18, 2016, at which time the court entered an order placing

Appellant on Youth Violence Reduction Partnership Probation, among other

conditions.

      Appellant timely appealed.       In January 2017, the trial court filed a

1925(a) statement but did not order a 1925(b) statement. Appellant raises

the following issues for our review:

      1. Did not the trial court err by denying [A]ppellant’s motion to
         suppress physical evidence under both the Federal and State
         Constitutions, inasmuch as reasonable suspicion that criminal
         activity was afoot was lacking where [A]ppellant merely turned
         his body away from police when he saw them and grabbed his
         waist, and the subsequent recovery of a firearm was the result
         of forced abandonment stemming from the illegal investigation
         detention?

      2. Did the trial court err by denying [A]ppellant’s motion to
         suppress physical evidence under both the Federal and State
         Constitutions, where there did not exist probable cause to
         arrest [A]ppellant under any Philadelphia City Ordinance?

Appellant’s Brief at 3.

      Appellant’s first contention is that the police did not have reasonable

suspicion that criminal activity was afoot in order to justify a stop and

investigative detention of K.P. Appellant’s Brief at 8. According to Appellant,

the firearm recovered was fruit of an unlawful detention. Id. Thus, Appellant

concludes, the trial court erred in denying Appellant’s suppression motion.

      In reviewing a suppression order:

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are

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      correct.    Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court's legal conclusions are erroneous. Where
      ... the appeal of the determination of the suppression court turns
      on allegations of legal error, the suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted).

      Appellant’s claim turns on the nature of the encounter between

Appellant and the police. We note, initially, that

      [t]here are three types of encounters between law enforcement
      officials and private citizens. A “mere encounter” need not be
      supported by any level of suspicion but carries no official
      compulsion to stop or respond. An “investigative detention” must
      be supported by reasonable suspicion and subjects the suspect to
      a stop and a period of detention, but it does not have the coercive
      conditions that would constitute an arrest. The courts determine
      whether reasonable suspicion exists by examining the totality of
      the circumstances. An arrest, or “custodial detention,” must be
      supported by probable cause.

In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).

      Here, the initial contact between Appellant and the police was an

investigative stop. See Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa.

Super. 2014) (“Our Supreme Court has held that where ‘a citizen approached

by a police officer is ordered to stop … obviously a ‘stop’ occurs.’”) (quoting

Commonwealth v. Jones, 378 A.2d 835, 839 (Pa. 1977)). Thus, we must

determine whether Officer Sweeney had reasonable suspicion that Appellant


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was involved in criminal activity at the time of the seizure. If Officer Sweeney

had reasonable suspicion of criminal activity on the part of Appellant, the gun

discarded by Appellant during the chase is not subject to suppression. See

Commonwealth v. Roberts, 133 A.3d 759, 772 (Pa. Super. 2016) (holding

that contraband discarded following a lawful detention is admissible.)

      Under Pennsylvania law, any items abandoned by the 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
      investigative 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 the product of coercion and is not
      admissible.

In re M.D., 781 A.2d 192, 196 (Pa. Super. 2001) (emphasis added, internal

citations and quotation marks omitted); see also Ranson, 103 A.3d at 77

(“[A]s pursuit by police constitutes a seizure under the law of this

Commonwealth, a person may be seized even though he is moving away from

the police.”) (citing Commonwealth v. Matos, 679 A.2d 769 (Pa. 1996)).

      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.

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In re M.D., 781 A.2d at 169 (citations omitted).        Here, Officer Sweeney

initially approaches Appellant to investigate the violation of a city ordinance.

In Philadelphia, loitering is defined as:

      (1)   Definitions
            a. Loitering. Idling or lounging in or about any place or
               facility described in (2), so as to prevent others from
               passage, ingress or egress, or to idle or lounge in or
               about any place or facility described in (2) in violation of
               any exiting statutes or ordinances.

                                   ***

      (2)   Prohibited Conduct. No person shall loiter in, on or about
            any underground platform or concourse, or any elevated
            platform serving public transportation facilities, or any
            underground or elevated passageway used by the public, or
            any railroad passenger station or platform, or on the steps
            leading to any of them. No person shall loiter in, on or about
            private property used to accommodate the public.

City of Philadelphia Ordinance, § 10-603(a)(1), (2); see also City of

Philadelphia Ordinance, § 10-615(2)(d) (relating to disorderly conduct and

related offenses).

      As Officer Sweeney believed Appellant was in violation of a city

ordinance he had the authority to file or issue a citation, file a complaint, or

arrest Appellant. This authority is conferred by the state legislature.

      [T]he Supreme Court noted that Pennsylvania Rule of Criminal
      Procedure 51 provided four circumstances under which summary
      criminal cases may be instituted: (a) issuing a citation to the
      defendant; (b) filing a citation; (c) filing a complaint; or (d)
      arresting without a warrant when arrest is specifically authorized
      by law.
                                      ***
      [T]he State Legislature has conferred authority on police officers
      in the City of Philadelphia to arrest individuals for violating city

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      ordinances. The relevant statutory provision granting such
      authority provides as follows:

         §13349. Summary         proceedings      for   violation   of
         ordinances

         Any police officer or constable, upon view of the breach of
         any ordinance of any city of the first class, is authorized to
         forthwith arrest the person or persons so offending, without
         any process…

      53 P.S. § 13349.

Commonwealth v. Rose, 755 A.2d 700, 702-703 (Pa. Super. 2000)

(footnotes and citations omitted), see also In re C.C.J., 799 A.2d 116, 122

(Pa. Super. 2002) (finding that police had reasonable suspicion to justify an

investigatory stop where a juvenile was observed in violation of the Public

School Code).

      Officer Sweeney testified that Appellant and a group of young men were

blocking the entrance to a market. Notes of Testimony, 3/29/16 at 4, 7. As

Officer Sweeney exited his vehicle, he observed Appellant turn his body, grab

his waistband, and begin to walk away. Id. Based on his observations, Officer

Sweeney approached and asked Appellant to stop. Id. Appellant then began

to run, and Officer Sweeney gave chase. Id. at 4-5. While running Officer

Sweeney observed Appellant remove a firearm from his waistband and throw

it into the backyard of 2008 Morris Street. Id. Considering the totality of

these circumstances, Appellant was subject to a valid investigatory stop and

brief detention by the police. Accordingly, the firearm discarded during flight




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was admissible, and the trial court properly denied Appellant’s motion to

suppress. Roberts, 133 A.3d at 772.

      Appellant next contends that the police lacked probable cause for an

arrest. Appellant’s Brief at 23. Appellant further asserts that the trial court

did not make a finding that he violated an ordinance and that the officer’s

testimony was insufficient to support probable cause for a violation of any

ordinance. Appellant’s Brief at 19-20. We reject the premise of Appellant’s

claim as probable cause is not the relevant standard. See In re C.C.J., 799

A.2d at 121. (“In order to justify an investigatory stop, the police must have,

at inception of stop, a reasonable suspicion that criminal activity is afoot.”).

Accordingly, we need not address this issue.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




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