J-A19005-14



                                   2014 PA Super 227

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                              Appellee

                         v.

HERBERT RANSON,

                              Appellant                        No. 1331 WDA 2013


                Appeal from the Judgment of Sentence July 16, 2013
                 In the Court of Common Pleas of Allegheny County
                Criminal Division at No(s): CP-02-CR-0016897-2012


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

OPINION BY OLSON, J.:                                      FILED OCTOBER 8, 2014

        Appellant, Herbert Ranson, appeals from the judgment of sentence of

one to three years’ imprisonment, imposed after he was convicted of

receiving stolen property1, person not to possess firearms2, and firearms not

to be carried without a license3.          The sole issue on appeal is whether the

trial court erred in denying Appellant’s motion to suppress.              After careful

consideration, we affirm.

        Prior   to   trial,   Appellant   filed   a   motion   to   suppress   evidence.

Specifically, Appellant sought to suppress a firearm that was found on his
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1
    18 Pa.C.S.A. § 3925(a).
2
    18 Pa.C.S.A. § 6105(a)(1).
3
    18 Pa.C.S.A. § 6106(a)(1).



* Former Justice specially assigned to the Superior Court.
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person following Appellant’s stop and seizure by three police officers.      A

hearing was held on Appellant’s pretrial suppression motion during which the

following facts were adduced.

      Detective Tanye Curry testified that he had been a police officer for 18

years and an officer for the City of Pittsburgh for approximately seven years.

N.T., 5/16/13, at 3. On December 15, 2012, Detective Curry was working

an approved off-duty detail for the City of Pittsburgh at the Serenity Club, an

after-hours club located in Zone 5 of the City of Pittsburgh.      Id. at 4-5.

Detective Curry described the location of the club as a high-crime area. Id.

at 5. According to Detective Curry, security was needed at the Serenity Club

as there were prior incidents at the club, including fights, shootings and

homicides. Id. at 5, 13. The patrons who went to the club included parole

and probation violators.   Id. at 13.   Detective Curry worked the security

detail at the Serenity Club for almost four years.      Id.   On the night in

question, the club was letting out at approximately 3:30 a.m.       Id. at 14.

Detective Curry and two other officers assigned to the security detail stood

in different areas around the perimeter of the club “to make sure nothing

occur[ed].” Id. at 6.   At that time, “a patron of the club stopped [Detective

Curry] and told [him] there was a male on the corner with a firearm. The

patron went on to give [Detective Curry] a description and said this person

was wearing a black hoodie, black jeans, and had a long beard. The patron

actually pointed the person out to [Detective Curry] on the corner.”       Id.

Although Detective Curry did not know the informant’s name, the Detective

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saw him on a regular basis as the informant was at the club “every single

weekend.”      Id.   at 15.     Appellant was the man to whom the informant

pointed and, at the time he was pointed out to Detective Curry, Appellant

was approximately 75 feet away from where Detective Curry stood. Id. at

7.   Appellant was leaning against the corner of a building facing the front

entrance of the club. Id. at 18. In light of this information, Detective Curry

approached the other two officers and told him what the informant had said.

Id. at 16.    The three officers, all dressed in full uniform, began to approach

Appellant from the side, at which time Appellant put his hands in his hoodie

pocket and started to walk away.               Id. at 9, 18-19, 20.4   That is when

Appellant was given the command to stop. Id. at 19. Although the officers

were all yelling to Appellant to “stop”, Appellant looked back at the officers

and continued to walk away. Id. at 19-20. At that point, Detective Curry

pulled his firearm out and held it at the side of his leg. Id. at 9.5     Appellant

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4
  The record on this fact is contradictory. On direct examination, Detective
Curry testified that as the officers first approached Appellant, “he was facing
toward us. As we started walking toward him, getting closer to him, he
turned and began to walk away from us.” N.T., 5/16/13, at 9. It was on
cross-examination that Detective Curry said that the officers approached
Appellant from the side as he was staring at the club.
5
  The evidence is unclear as to whether the officers had their weapons
pointed at Appellant. Detective Curry testified that he had his weapon un-
holstered and out by his side but it was not pointed at Appellant. N.T.,
5/16/13, at 24, 25. Detective Fred Wright, one of the other officers on duty
that night, testified that he and Officer Kenny, the third officer, had their
guns “drawn” as they approached Appellant. Id. at 28.



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walked approximately 50 feet with the officers walking behind him telling

him to stop. At this point, Appellant finally stopped and turned toward the

officers.   Id. at 21-22.   Detective Curry ordered Appellant to remove his

hands from the pocket of his hoodie sweatshirt at which time Detective

Curry could see the imprint of a gun through the black sweatshirt. Id. at

22. Appellant was searched and an operational, .45 caliber Taurus firearm

was found in the front pocket of his hoodie sweatshirt.

      Following the hearing, the trial court denied the suppression motion.

Appellant proceeded to a non-jury trial on July 16, 2013. At the conclusion

of the trial, the trial court found him guilty of the above-referenced crimes.

He was sentenced on that same day.         Appellant filed a timely notice of

appeal, as well as a timely concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).      The trial court filed its opinion in

accordance with Pa.R.A.P. 1925(a).

      Appellant presents the following question for our review:

      Did the trial court err in denying [Appellant’s] motion to
      suppress where police lacked reasonable suspicion to believe
      [Appellant] was engaged in criminal conduct at the time that
      they stopped him?

Appellant’s brief at 4.

      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

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        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. 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), cert. denied, 131

S.Ct.    110   (U.S.   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., 79 A.3d 1073, 1083-1087 (Pa. 2013).

        It is well-established that there are three categories of interaction

between citizens and police officers.        As our Supreme Court has clearly

articulated:

        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 to
        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. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012),

appeal denied, 48 A.3d 1247 (Pa. 2012), quoting Commonwealth v. Ellis,

662 A.2d 1043, 1047 (Pa. 1995) (citations omitted). Under the facts of this


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case, we find that Appellant was subjected to an investigative detention at

the time that the three officers commanded Appellant to stop. Our Supreme

Court has held that where “a citizen approached by a police officer is ordered

to stop … obviously a ‘stop’ occurs.” Commonwealth v. Jones, 378 A.2d

835, 839 (Pa. 1977). Moreover, as 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.      See Commonwealth v. Matos, 672

A.2d 769 (Pa. 1996).     Thus, the issue is whether the officers possessed

reasonable suspicion that Appellant was engaged in criminal conduct when

they issued their command.          We conclude that they did, therefore,

Appellant’s detention was lawful.

      In denying the suppression motion, the trial court looked to this

Court’s decision in Commonwealth v. Foglia, 979 A.2d 357 (Pa. Super.

2009) (en banc), appeal denied, 990 A.2d 727 (Pa. 2010) as guidance as to

whether the investigative detention of Appellant was proper. In Foglia, this

Court set forth the standard that must be applied in determining whether an

investigative detention of an individual is constitutionally sound:

      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the
      individual is engaging in criminal conduct. This standard, less
      stringent than probable cause, is commonly known as
      reasonable suspicion. In order to determine whether the police
      officer had reasonable suspicion, the totality of the
      circumstances must be considered.              In making this
      determination, 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. Also, the totality of the

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      circumstances test does not limit our inquiry to an examination
      of only those facts that clearly indicate criminal conduct. Rather,
      even a combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Id. at 360 (citations and internal quotes omitted).     In Foglia, two police

officers in uniform were on patrol in a high-crime area of Philadelphia in a

marked cruiser. The officers received a radio broadcast emanating from an

anonymous source that there was a man standing on a specified corner

dressed in black clothes who was carrying a firearm. In less than a minute

and a half, the officers arrived at the designated corner and saw two males,

one of whom was the appellant who was dressed entirely in black. In order

to avoid detection, the officers entered the street with their headlights off.

When the appellant and his companion saw the officers, they began to walk

away from the cruiser. One of the officers watched the appellant who looked

back several times but kept walking in the opposite direction. The officers

stopped their vehicle and exited at which time the appellant grabbed around

his waist area and sat on some steps behind two females. At that point, one

of the officers ordered the appellant to stand, informed him that he was

investigating a male with a gun that fit the appellant’s description, and

immediately patted the appellant down at which time he found a gun tucked

into the appellant’s waistband. The appellant was arrested for various gun

offenses.   The appellant filed a motion to suppress, asserting that the

firearm was seized following an illegal police detention.    The suppression

court denied the motion and this Court affirmed the ruling. In considering

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the totality of the circumstances, this Court noted that a seventeen-year

veteran of the police force was patrolling in an area that had a high volume

of drugs and weapons. This officer received an anonymous tip that a man

dressed all in black was at a specified location and he possessed a gun.

Upon immediately proceeding to that location, the officers saw two men, one

of whom was dressed all in black. That man engaged in evasive behavior by

continually looking back at police and walking away from them. He touched

his waistband (where individuals frequently conceal weapons according to

the officer).      Based upon all of these circumstances considered in their

totality,   this   Court   determined   that   the   investigative   detention   and

subsequent pat-down of the appellant was constitutionally sound and,

therefore, the suppression court acted properly in denying the appellant’s

suppression motion.

      Similar to the facts in Foglia, Detective Curry’s decision to approach

and investigate Appellant was prompted by a tip. However, unlike the tip in

Foglia which was received over the police radio and completely anonymous,

Detective Curry received his information in person from an individual who

frequented the Serenity Club on a weekly basis and whom Detective Curry

saw regularly.       We acknowledge that Detective Curry did not know the

tipster’s name; however, that fact does not make the tip purely anonymous

and one that lacked any indicia of reliability.




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       “In analyzing an anonymous tip, we must determine whether under

‘the totality of the circumstances’      the informant’s tip established the

necessary     reasonable   suspicion   that   criminal   activity   was   afoot.”

Commonwealth v. Martin, 705 A.2d 887, 892 (Pa. Super. 1997), appeal

denied, 725 A.2d 1219 (Pa. 1998), quoting Alabama v. White, 496 U.S.

325 (1990).     “[Both] quantity and quality of information are considered

when assessing the totality of the circumstances. If information has a low

degree of reliability, then more information is required to establish

reasonable suspicion.” Commonwealth v. Wimbush, 750 A.2d 807, 811

(Pa. 2000).

       Appellant argues that the tipster in this case was purely anonymous

and, therefore, his tip could not be used as a basis to establish reasonable

suspicion. Appellant’s brief at 14-17. In support of this argument, Appellant

cites to several cases. However, the facts of the cases cited by Appellant

are clearly distinguishable from the facts in the case sub judice.            In

Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997), the police

received an anonymous telephone call that a black male wearing a blue cap,

black jeans and a gold or brownish coat at a particular corner was carrying a

gun.   When the officer arrived at the location, he saw the appellant, and

based solely on the tip and the fact that the appellant met the general

description given by the tipster, the officer stopped and frisked the appellant

at which time a gun was found in his waistband.          In Commonwealth v.


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Jackson, 698 A.2d 571 (Pa. 1997), a police officer received a police radio

report of a man in a green jacket carrying a gun.     Other than the jacket

description and the man’s location, no additional details were provided. The

report was based on an anonymous telephone call. When the officer arrived

at the location, he saw a number of individuals but only the appellant was

wearing a green jacket.    The officer exited his vehicle and immediately

searched the appellant.   During the search, no weapon was found, but a

small box containing cocaine fell to the ground. Finally, in Commonwealth

v. Hayward, 756 A.2d 23 (Pa. Super. 2000), an officer was on foot patrol

when an unidentified passerby told him that there was a group of six to

eight males in the park and one of the males, who was “tall”, was

brandishing a gun. No other descriptive identification was given regarding

the man who allegedly had the gun. The officer said that the passerby did

not identify himself and the officer had never seen him before. It took the

officer ten minutes to arrive at the park at which time he saw a group of

individuals, including the appellant. The appellant was approximately 6’1” to

6’2” although there were a couple of other individuals in the group who were

very close to the appellant’s height. The group of individuals were ordered

to line-up on the sidewalk at which time they were all frisked.     The frisk

yielded a gun tucked in the appellant’s waistband.

     In each of these cases, the searches were deemed unconstitutional

because only general and vague tips were offered to establish reasonable


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suspicion.     In Hawkins and Jackson, the tips were from anonymous

telephone callers and only broad, general descriptions of persons and

locations were given. Although the tip in Hayward was made in person, it

was a vague description of a “tall” male made by a person that the officer

had never seen before.           In this case, Detective Curry received his tip in

person from an individual he saw on a regular basis and who went to the

after-hours club weekly. The description of the person was not vague – in

fact, the tipster not only described Appellant, he pointed him out to the

detective. Taken together, the facts show that Detective Curry, a veteran

officer, had an opportunity to assess: (1) the demeanor of the tipster; (2)

the basis of the tipster’s knowledge; and, (3) the tipster’s present ability to

perceive Appellant.       These facts give additional credence to the tipster’s

information.

      The    facts   of   this     case   are   more     akin   to   the   situation   in

Commonwealth v. Williams, 980 A.2d 667 (Pa. Super. 2009), appeal

denied, 990 A.2d 730 (Pa. 2010). In Williams, Officer Sean McGinnis was

on routine patrol when he received a radio call advising of a robbery in

progress at a particular street corner.            Arriving at the specified location,

Officer McGinnis saw the appellant walking up the street with two female

police officers walking behind him trying to catch up. Officer McGinnis also

encountered “a Hispanic male pointing up to the [a]ppellant yelling, ‘He’s got

a gun.’” Id. at 669. The appellant turned the corner at which time Officer


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McGinnis pulled his patrol car about 15 feet in front of the appellant while

the two female officers gave the appellant verbal commands to stop. The

appellant initially complied with the verbal commands by placing his hands

against an adjacent wall, but he then ran. Pursuing on foot, Officer McGinnis

saw the appellant clutch the right side of his waist. Several blocks away, the

appellant was blocked off by another patrol car at which time the appellant

pulled a gun from his waistband and tossed it away. The suppression court

denied the appellant’s motion to suppress the gun and the appellant was

convicted of various gun offenses. On appeal, the appellant argued that the

stop was illegal as Officer McGinnis did not have the requisite level of

suspicion needed to support an investigative detention.       In affirming the

suppression court’s denial of suppression, this Court stated as follows:

         In order to justify an investigative detention, the police
         must have reasonable suspicion that criminal activity is
         afoot. Reasonable suspicion must be based on specific and
         articulable facts, and it must be assessed based on the
         totality of circumstances viewed through the eyes of a
         trained police officer. Here, Officer McGinnis had just
         received a radio call advising of a robbery in progress,
         observed [a]ppellant in the immediate vicinity of the
         reported robbery attempting to avoid two female officers
         who were approaching him on foot, and encountered a
         witness who was pointing at [a]ppellant yelling, “He has
         got a gun.”

         Appellant argues that the witness’ statement, “He has got
         a gun” is the equivalent of an uncorroborated, anonymous
         tip, and is insufficient to establish reasonable suspicion
         justifying an investigative stop. We disagree. Each of the
         cases cited by [a]ppellant on this point involve anonymous
         phone calls to the police regarding criminal activity. The
         situation here, however, is distinguishable in that

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         the tip was made in person, giving Officer McGinnis
         an opportunity to observe the witness’ demeanor
         and assess his credibility in light of his past
         experience with investigating crimes. Such a tip
         must be given more weight than a mere anonymous
         phone call because a person who knowingly gives false
         information to any law enforcement officer with intent to
         implicate another may be held criminally liable.

Id. at 671-672. (emphasis supplied) (internal citations, quotation marks,

ellipses and footnote omitted).

      The tip in the case sub judice is even more reliable than the tip in

Williams, which this Court deemed sufficient to support reasonable

suspicion. In Williams, the only evidence was that an Hispanic male told

Officer McGinnis that the appellant had a gun.         There was no further

description of the tipster or any indication that the officer had ever seen him

before. In this case, however, Detective Curry testified that he had seen the

tipster on a regular basis as he was a patron at the club every weekend.

Like in Williams, Detective Curry had the opportunity to observe the

tipster’s demeanor and assess his credibility in light of his 18 years of

experience as a police officer. Thus, the tip given to Detective Curry by a

regular patron of the Serenity Club was a legitimate factor upon which the

officer could rely in determining that there was reasonable suspicion to stop

Appellant.

      Moreover, there were additional facts that must be considered in

viewing the totality of the circumstances from the eyes of the officers in this

case. The Serenity Club was in Zone 5 of Pittsburgh – an area known as a

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high-crime area.     More importantly, the club itself was known to be

frequented by parole and probation violators and had been the site of prior

fights, shootings and homicides.     Thus, there was a credible basis from

which the officers could infer that the people in and near the club had

weapons. Detective Curry and the other officers were specifically assigned

to the task of patrolling the area around the Serenity Club to make sure

things remained calm and peaceful.      The events in this case happened at

3:30 a.m., when the after-hours club was closing and the people were

leaving.   Additionally, as the officers in full uniform started to approach

Appellant from the side (but before the commands to stop were issued),

Appellant started to walk away. It is reasonable to infer that Appellant saw

the officers approaching and turned and walked away in an effort to evade

them. Although each of these factors, standing alone, may not be sufficient

to establish reasonable suspicion, taken in their totality, they are sufficient

to have reasonably led the officers to believe that criminal activity was afoot

so as to justify the investigative detention of Appellant.   See Foglia, 979

A.2d at 361-362 (the anonymous tip, appellant’s attire and location which

matched the information provided by the anonymous tipster, the high-crime

area, and appellant’s evasive behavior of walking away from the police as

they approached were sufficient to support an investigative detention and

subsequent search); see also Commonwealth v. Zhahir, 751 A.2d 1153

(Pa. 2000) (an anonymous tip that a male wearing a green jacket and blue


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jeans was selling narcotics at a specified street corner, appellant’s attire and

location   matching      the   information     provided   by   the   anonymous   tip,

appellant’s action of walking into a restaurant upon seeing the officers when

officers arrived at the specified location two and one-half hours later,

appellant’s action of throwing something on the floor of the restaurant and

then later retrieving it, and the fact that this occurred in a high-crime area

were sufficient to support an investigative detention).6

       Thus, in considering the totality of the facts and circumstances, and

after applying our standard of review, we conclude that the trial court did

not err in denying Appellant’s suppression motion.

       Judgment of sentence affirmed.
____________________________________________


6
  In denying the suppression motion, the trial court not only relied on the
facts of the high-crime status of the neighborhood and the club, and
Detective Curry’s familiarity with the tipster, but it also relied on the
evidence of Appellant’s evasiveness in refusing to stop after being ordered to
do so and “his unusual hand movements in refusing to remove his hand
from his pocket where the gun could be seen, and then returning his hand to
the pocket with the gun.” Trial Court Opinion, 1/14/14 at 3-4. We do not
believe that that evidence should have been considered in determining
whether the officers had reasonable suspicion to detain Appellant. As noted,
supra, the officers effectively detained Appellant at the moment that they
commanded him to stop. Thus, only the factors apparent to the officers at
that time can be considered in determining whether they had reasonable
suspicion to believe that criminal activity was afoot. As Appellant’s action of
continuing to walk away from the officers after being told to stop, and his
hand movements with respect to the gun, occurred after Appellant was
commanded to stop, that evidence cannot serve as a basis to support the
denial of the suppression motion. However, as there were sufficient factors
to support an investigative detention at the time that Appellant was
commanded to stop, it was harmless error on the part of the trial court to
refer to those additional factors.



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     Justice Fitzgerald joins this Opinion.

     President Judge Emeritus Bender files a Dissenting Opinion.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




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