J-S36012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TERRELL DIXON

                            Appellant                 No. 1825 MDA 2015


           Appeal from the Judgment of Sentence September 17, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000587-2014


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                                 FILED MAY 05, 2016

        Appellant, Terrell Dixon, appeals from the September 17, 2015

judgment of sentence of three to six years’ incarceration, imposed after the

trial court convicted him of one count of carrying a firearm without a

license.1 After careful review, we affirm.

        The suppression court summarized the factual history of this case as

follows.

                     On January 13, 2014, Manheim Borough Police
              Officers Kevin Oswald and Ryan Yarnell responded to
              a call of a trespass in progress at the Caribbean Inn
              at 1 South Charlotte Street, in the Borough of
              Manheim, Lancaster County. Officers Oswald and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6106(a).
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          Yarnell arrived on scene within approximately five
          minutes of dispatch. As Officer Oswald approached
          the Caribbean Inn, he observed [Appellant], whom
          neither he nor Officer Yarnell recognized, and Jean-
          Luc Beers, an individual both officers knew, walking
          down the stairs to the street.        Officer Oswald
          approached      and    engaged      [Appellant]    in
          conversation, while Officer Yarnell spoke to Mr.
          Beers.

                 Officer Oswald testified that [Appellant] and
          Mr. Beers appeared to be “in a rush to leave.” He
          believed that both men were involved in the trespass
          call because they were leaving the Caribbean Inn not
          long after the call had been received. Officer Oswald
          testified that he did not ask for identification from
          [Appellant]    nor    did    he   direct  [Appellant’s]
          movements or accuse him of any crime. Officer
          Oswald asked if either man knew who had called the
          police, to which both men responded, “No.” When
          asked, [Appellant] stated that he did not live at the
          Caribbean Inn.       [Appellant] stated that he was
          present at the Caribbean Inn to see a friend, but did
          not know his friend’s name and did not provide the
          friend’s room number.         As [Appellant] answered
          Officer Oswald’s questions, he became nervous and
          spoke faster than normal.             At some point,
          [Appellant] sat down on the steps outside the
          Caribbean Inn.         Officer Oswald noticed that
          [Appellant] appeared very nervous, beyond a
          general anxiety of being around the police.

                [Appellant] avoided eye contact as Officer
          Oswald talked to him, and he continued to touch his
          hooded sweatshirt in the area of his waistband.
          Officer Oswald described the behavior as “nervous
          behavior, where there was something in that area
          that he didn’t want me to know about or it [sic] was
          subconsciously touching.” Officer Oswald was then
          approached by a maintenance man of the Caribbean
          Inn who told Officer Oswald that “Brian had called
          the police … and that someone had a gun.” Officer
          Oswald, recognizing that the waistband is a common
          area for weapons to be concealed, and believing that

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           [Appellant] had been nervously touching a firearm in
           his waistband, grabbed [Appellant’s] right wrist and
           placed him up against a nearby wall.

                 Officer Yarnell did not hear the interaction
           between the maintenance man and Officer Oswald.
           Officer Yarnell testified that Mr. Beers looked over his
           shoulder at [Appellant] and said, “that’s the guy you
           were called about.”        Before Officer Yarnell could
           inform Officer Oswald of this statement, Officer
           Yarnell saw that [Appellant] was already being held
           against a nearby wall by Officer Oswald.

                 Officer Oswald advised Officer Yarnell that a
           gun was involved, and he controlled [Appellant’s]
           wrists until Officer Yarnell could respond.     Even
           though Officer Oswald instructed [Appellant] not to
           move, [Appellant] offered some resistance as Officer
           Yarnell attempted to handcuff him.        [Appellant]
           attempted to move his hands once he was
           handcuffed, and Officer Yarnell prevented any further
           movement. Both officers testified that [Appellant]
           was placed into handcuffs so that officers could
           determine if he was armed. Neither officer informed
           [Appellant] that he was under arrest before a pat-
           down was conducted.

                 Officer Yarnell conducted a pat-down of
           [Appellant’s] clothes which revealed a .40 caliber
           glock pistol stowed in [Appellant’s] waistband groin
           area.     Officer Yarnell asked [Appellant] if he
           possessed a license to carry firearms, to which
           [Appellant] replied, “No, I’m not supposed to have
           that.” Approximately three minutes elapsed from
           the time that Officers Oswald and Yarnell arrived on
           the scene until [Appellant] was placed into
           handcuffs.

Trial Court Opinion, 2/4/15, at 2-4 (citations to notes of testimony and

footnotes omitted).




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       Appellant was charged with carrying a firearm without a license. On

April 14, 2014, he filed a motion to suppress the evidence obtained from his

encounter with Officers Oswald and Yarnell.       The suppression court held a

hearing on September 9, 2014, and issued its opinion and order denying the

motion on February 4, 2015. Appellant proceeded to a non-jury trial on July

7, 2015, after which the trial court rendered its guilty verdict. 2        On

September 17, 2015, the trial court sentenced Appellant to three to six

years’ incarceration.        Appellant did not file a post-sentence motion.

Appellant filed a timely notice of appeal on October 16, 2015.3

       On appeal, Appellant presents a single issue for our review.

              Did the trial court err in denying [Appellant’s] Motion
              to Suppress, where police had neither reasonable
              suspicion nor probable cause to justify the detention
              and/or arrest and frisk of [Appellant]?

Appellant’s Brief at 4.

       Our review of a trial court’s suppression ruling is guided by the

following.
____________________________________________


2
  The Honorable Jeffery D. Wright presided at Appellant’s trial, while the
suppression motion was heard and decided by The Honorable James P.
Cullen.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Judge Wright issued a Memorandum of Opinion
on November 13, 2015, in which he stated, “the reasons for the denial of
[Appellant’s suppression m]otion are stated in Judge Cullen’s February [4],
2015 Opinion and Order. Therefore, I rely on that Opinion and Order to
comply with Pa.R.A.P. 1925(a).”




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                    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 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. 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, 605
              Pa. 188, 988 A.2d 649, 654 (2010) (citations,
              quotations, and ellipses omitted).          Moreover,
              appellate courts are limited to reviewing only the
              evidence presented at the suppression hearing when
              examining a ruling on a pre-trial motion to suppress.
              See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1083–
              1087 (2013).

Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015), appeal

granted, ---A.3d---, (Pa. 2016).

     Instantly, Appellant contends “police had neither reasonable suspicion

nor probable cause to justify the detention and/or arrest and frisk” of

Appellant.    Appellant’s Brief at 11.   Appellant asserts that “although the

encounter with [Appellant] began as a ‘mere encounter,’ it ripened into an

investigative detention without reasonable suspicion, then into a custodial

arrest without probable cause, and the firearm seized during the frisk of

[Appellant]    should   have   been   suppressed,   along   with   [Appellant’s]

statements to police.”    Id. at 13. The essence of Appellant’s argument is


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that his interaction with police transformed from a mere encounter to a

custodial detention without reasonable suspicion “when Officer Oswald

informed   [Appellant]   that   he   was   investigating   a   criminal   trespass,

instructed [Appellant] to sit on the steps and began asking questions.” Id.

at 18. Appellant avers that the investigative detention became an improper

“custodial detention when [Appellant] was physically manipulated into

handcuffs against the wall, and told not to move, without explanation.” Id.

      Conversely, the Commonwealth apprised the scenario presented on

appeal as follows.

            [T]he interaction [the police officers] had with the
            Appellant started off as a mere encounter that went
            to an investigative detention supported by
            reasonable suspicion, and articulate[d] specific facts,
            that criminality was afoot. The period of detention
            was approximately 3 minutes, it did not involve any
            coercive tactics by police that would make the
            interactions the functional equivalent of an arrest. It
            wasn’t until after the gun was found that the
            Appellant was arrested.        It would be clearly
            unreasonable in this situation to prevent the Officer
            from making sure the person he was dealing with
            was not armed and dangerous.

Commonwealth’s Brief at 11-12.

      Upon review, we are not persuaded by Appellant’s interpretation of

events, and agree with the Commonwealth that suppression was not

warranted. We recognize the applicable law as follows.

            [T]here are three levels of encounter that aid courts
            in conducting search and seizure analyses.




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                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 reasonable
                suspicion; it subjects a suspect to a stop
                and period of detention, but does not
                involve such coercive conditions as to
                constitute the functional equivalent of
                arrest. Finally, an arrest or “custodial
                detention” must be supported by
                probable cause.

          Commonwealth v. Williams, 73 A.3d 609, 613
          (Pa. Super. 2013) (citation omitted), appeal denied,
          ––– Pa. –––, 87 A.3d 320 (2014).

                                    ***

          “The Fourth Amendment permits brief investigative
          stops ... when a law enforcement officer has a
          particularized and objective basis for suspecting the
          particular person stopped of criminal activity.”
          Navarette v. California, 134 S.Ct. 1683, 1687
          (2014). It is axiomatic that to establish reasonable
          suspicion, an officer “must be able to articulate
          something      more     than    an      inchoate    and
          unparticularized suspicion or hunch.” United States
          v. Sokolow, 109 S.Ct. 1581 (1989) (internal
          quotation marks and citation omitted). Unlike the
          other     amendments       pertaining      to   criminal
          proceedings, the Fourth Amendment is unique as it
          has standards built into its text, i.e., reasonableness
          and probable cause. See generally U.S. Const.
          amend. IV. However, as the Supreme Court has
          long recognized, Terry v. Ohio, 88 S.Ct. 1868
          (1968) is an exception to the textual standard of
          probable cause. Florida v. Royer, 103 S.Ct. 1319
          (1983). A suppression court is required to “take[ ]
          into account the totality of the circumstances—the
          whole picture.”       Navarette, supra (internal
          quotation marks and citation omitted).             When

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            conducting a Terry analysis, it is incumbent on the
            suppression court to inquire, based on all of the
            circumstances known to the officer ex ante, whether
            an objective basis for the seizure was present.
            Adams v. Williams, 92 S.Ct. 1921 (1972). In
            addition, an officer may conduct a limited search,
            i.e., a pat-down of the person stopped, if the officer
            possesses reasonable suspicion that the person
            stopped may be armed and dangerous.           United
            States v. Place, 103 S.Ct. 2637 (1983) (citation
            omitted).

Commonwealth v. Carter, 105 A.3d 765, 768-69 (Pa. Super. 2014)

(parallel citations omitted), appeal denied, 117 A.3d 295 (Pa. 2015).

      We have carefully scrutinized the transcript from the suppression

hearing, at which two witnesses, Officer Kevin Oswald and Officer Ryan

Yarnell, testified. Officer Oswald testified to responding to the Caribbean Inn

boarding house, after receiving a call reporting a trespass from “another

resident of the building.”   N.T., 9/9/14, at 5.    Officer Oswald stated his

“police department is at the Caribbean often. [One] South Charlotte is the

boarding house and 3 South Charlotte is the attached bar. Because of the

criminal activity that goes on in there, they have surveillance cameras so we

did not want to park right where they know we were coming, depending on

who was involved.”     Id. at 14.   When Officer Oswald walked toward the

Caribbean Inn, he saw Mr. Beers and Appellant exiting the building and

walking toward the street.    Id. at 7.    Officer Oswald asked whether they

knew who called the police, and testified that he, Officer Oswald, was “laid

back. I wasn’t – I initially wasn’t sure if they were involved in the call. With

that building, the way it is laid out inside – we respond there often – it


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seems if something is going on, a lot of people would know about it because

it is such close quarters.   They are single rooms, several in a very tight

area.”   Id. at 7-8.   However, Officer Oswald subsequently observed that

“both subjects appeared nervous. Neither one appeared like they wanted to

speak with the police. They appeared to be in a rush to leave.” Id. at 8.

He said he did not direct Appellant’s movements or accuse him of anything,

and was “just asking general questions.”     Id. at 9.   He also testified on

direct examination as follows.

            [Appellant] appeared very nervous. When he was
            sitting on the steps he continued to touch [his]
            hooded sweatshirt in the area of his waistband. As I
            spoke with him, he answered a few of my general
            questions, started to speak faster, appeared more
            nervous. He was looking off into the distance. He
            didn’t make a whole lot of eye contact during our
            interaction.
                                     …

            He appeared nervous. A lot of people we interact
            with are nervous to be around the police. This
            appeared to be more than that, you know, just the
            general anxiety of being around the police.      It
            seemed like there was more he wasn’t telling me.

            Q. While you were speaking with [Appellant,] did
            anyone else approach you?

            As I was speaking to [Appellant,] a maintenance
            worker for the Caribbean Inn approached me. He
            was speaking with another unknown male, but he
            stated to me that Brian had called the police – who
            was the original caller – and that someone had a
            gun.

            Q. As a result of that information, what did you do?


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           At that time I grabbed [Appellant’s] right arm and
           right hand, applied pressure, secured it, [and]
           advised Officer Yarnell there was a gun involved.

           Q. Why did you grab [Appellant]?

           The way he was behaving, how nervous he was,
           picking at his clothes, the fidgeting, touching the
           hoody. That information, and then the information
           that there was a gun, my initial reaction was he’s the
           person with the gun. The gun is somewhere where
           he was just touching.

           Q. So why would you then apply to grab his hands?

           I chose to grab his right hand. Most people are
           right-handed. I did it for officer safety so I can
           secure that hand and that gun can’t be drawn from
           wherever it’s secured.

           Q. What happened next?

           Officer Yarnell approached. I assisted him in placing
           him in handcuffs – placing [Appellant], into
           handcuffs.

Id. at 9-11.

     On    cross-examination,   Officer   Oswald   testified   that   when   he

encountered Appellant, he engaged Mr. Beers and Appellant with “Hey, guys,

do you know who called the police? … I believe I explained the nature of the

call, why we were there; someone called the police for trespassing.           I

explained to them that I just received the call. You guys are both walking

out of here. I believed they were involved, just because of the timing.” Id.

at 19. Officer Oswald asked Appellant “why he was at the Caribbean. [He

said he had] a friend that lives there. Didn’t provide room number. Didn’t


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provide friend’s name. Didn’t know the friend’s name. That was a follow-up

question, well, who’s your friend?     Couldn’t tell me a name.”      Id. at 33.

Officer Oswald testified that his conversation with Appellant “took place on

the steps.   He eventually sat down on, I believe, the first or second step.

Officer Yarnell spoke with [Mr. Beers] right in the area of the steps.        We

were probably within arms distance of each other, myself and Officer

Yarnell.” Id. at 20. Officer Oswald stated that he did not recall whether he

asked Appellant to sit, but “it’s possible.” Id. He said “I don’t recall. I do

have people sit at times. I don’t recall if I had him sit.” Id.     He explained

that Appellant “wasn’t [sitting for] an extended period of time” when a

maintenance worker approached and “said that someone had a gun.” Id. at

22-23. At that point, Officer Oswald grabbed Appellant and put him against

a wall; Appellant “started pulling away with his hand a little bit,” but partially

complied as Officer Yarnell handcuffed Appellant and Officer Oswald patted

him down. Id. at 24-25. Officer Oswald testified he “felt some resistance

when I was holding [Appellant’s] wrist and I explained to him, you know,

don’t pull away, stop moving.”        Id. at 27.      He said that he “placed

[Appellant] against the wall [not to arrest him, but] to secure him until I was

able to determine if a gun was involved and if he was the one carrying that

gun.” Id. at 32. The officers also placed Mr. Beers in handcuffs, because

they “still did not know who had the gun.”         Id. at 26.     Officer Oswald

testified he “absolutely” became concerned for his safety when Appellant


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showed “fidgeting of the outer garments, the nervous behavior, evasive

answers to my questions, and the biggest [reason] was the information that

there was a gun involved….” Id. at 31-32.

      Officer Yarnell corroborated Officer Oswald’s testimony, noting that the

officers reported to the Caribbean Inn at 9:43 p.m. on January 13, 2014,

after receiving “a call for trespass” and information “that one of the tenants

was needing help.     There were possibly drugs involved, I believe it was

indicated.” Id. at 36-38. Officer Yarnell testified that like Officer Oswald, he

knew Mr. Beers but did not know Appellant. Id. at 39. He stated that Mr.

Beers was acting uncharacteristically nervous, and when he asked Mr. Beers

“what’s wrong” and “what are you worried about?” Mr. Beers “looked over

his shoulder” toward Appellant and said “that’s the guy you’re looking for.”

Id. at 40-41. Officer Yarnell explained that he and Mr. Beers “didn’t really

get any further with the conversation” because he heard “Officer Oswald

indicate to me that there is a gun,” which prompted Officer Yarnell to “walk

over [and] handcuff [Appellant].” Id. at 42.

      Based on the above testimony, we conclude that the police officers

initially had a mere encounter with Appellant when they arrived at the

Caribbean Inn and Officer Oswald asked Appellant whether he knew who

called the police.   Commonwealth v. Williams, 73 A.3d 609, 615 (Pa.

Super. 2013) (mere encounter where experienced officer, who knew the

area to be one where crimes frequently occurred, observed appellant and


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approached him to ask his name and destination; officer did not tell

appellant he was not free to leave, and there was no indication that the

officer in any way intimidated or threatened appellant, or suggested there

would be any adverse consequence if he failed to identify himself), appeal

denied, 87 A.3d 320 (Pa. 2014).

      Although Officer Oswald testified that he could not recall whether

Appellant proceeded to sit down on the steps at Officer Oswald’s request, or

of his own volition, Appellant’s position on the steps, with the officers

standing closely and in front of him, after Appellant initially attempted to

walk away from the Caribbean Inn, indicates that Appellant did not feel free

to leave or end the encounter, such that the mere encounter became an

investigative detention.   Commonwealth v. Gutierrez, 36 A.3d 1104,

1107 (Pa. Super. 2012), appeal denied, 48 A.3d 1247 (Pa. 2012), citing

Commonwealth v. Smith, 732 A.2d 1226, 1232 (Pa. Super. 1999) (stating

that whether a seizure has been effected hinges on “whether a reasonable

person would feel free to decline the officers’ requests or otherwise

terminate the encounter”), affirmed, 836 A.2d 5 (Pa. 2003).         However,

contrary to Appellant’s assertions, the investigative detention was supported

by the officers’ objective reasonable suspicion that criminal activity was

afoot, given the totality of the circumstances, where the officers were called

to the Caribbean Inn, known for criminal activity, at approximately 9:45

p.m., and Appellant was both nervous and evasive in his interaction with


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Officer Oswald.   Further, the officers’ search and handcuffing of Appellant

upon learning about the existence of a gun did not constitute an illegal

arrest, and was proper given the officers’ concerns for their safety.

Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006)

(police officer may frisk an individual during an investigatory detention when

the officer believes, based on specific and articulable facts, that the

individual is armed and dangerous), appeal denied, 917 A.2d 846 (Pa.

2007); Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa. Super. 2005)

(“for their safety, police officers may handcuff individuals during an

investigative detention”), appeal denied, 897 A.2d 455 (Pa. 2006).          Thus,

Appellant was not under arrest until the officers discovered his firearm.

      Based on the foregoing, we conclude that Appellant’s suppression

claim lacks merit. We therefore affirm the September 17, 2015 judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2016




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