J-A32036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWIN ROBIN ANDERSON,

                            Appellant                No. 1329 EDA 2016


             Appeal from the Judgment of Sentence March 28, 2016
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0000334-2015


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

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 07, 2017

        Appellant, Edwin Robin Anderson, appeals from the judgment of

sentence1 imposed following his bench conviction of one count each of

persons not to possess firearms, and firearms not to be carried without a

license.2    Appellant challenges the trial court’s denial of his motion to

suppress evidence. We affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We have amended the caption to reflect that, although Appellant purports
to appeal from the order denying his suppression motion, the appeal
properly lies from his judgment of sentence. See Commonwealth v.
Pratt, 930 A.2d 561, 562 n.1 (Pa. Super. 2007), appeal denied, 946 A.2d
686 (Pa. 2008).
2
    18 Pa.C.S.A. §§ 6105(c)(2) and 6106(a)(1), respectively.
J-A32036-16



        We take the relevant facts and procedural history of this case from our

independent review of the certified record.      In the early morning hours of

January 22, 2015, Corporal Jonathan Shave of the Coatesville Police

Department received a dispatch to the scene of a robbery. The suspects had

fled, and the victim

              described them as being young black males in their teens
        or early twenties. The suspect that came in the house and took
        the wallet he described as light skinned, shorter and stocky. The
        other suspect he described as dark skinned and taller. . . .

        . . . [The victim] stated that one of the suspects implied that he
        had a gun and he did observe a dark handle in his pocket, but he
        could not tell if it was a gun or not. . . .

(N.T. Suppression, 9/23/15, at 13).

        On January 23, 2015, at about 5:25 p.m., while off-duty, Cpl. Shave

went to a Walgreens store located in a high crime area, approximately ten

blocks away from where the robbery occurred.         Cpl. Shave observed two

men who generally matched the physical description of the robbery suspects

walk into the store together, specifically, Mr. Ernay,3 a “[l]ight-skinned black

male, small in stature,” and Appellant, who “was darker skinned than his

light-skinned male companion and he was taller.” (Id. at 10; see id. at 19).

Cpl. Shave

              observed that [Mr. Ernay] was carrying a firearm. The
        firearm was on his right side.     [Cpl. Shave] observed the
        firearm, the slide and the barrel to be tucked into his jeans
____________________________________________


3
    Mr. Ernay’s first name is not apparent from the record.



                                           -2-
J-A32036-16


      pocket with the handle of the firearm sticking out. The weapon
      was not holstered in any way, shape or form.

(Id. at 7).

      Cpl. Shave, who has had extensive training in the area of firearm

safety, had never seen anyone carry a firearm in this dangerous manner.

(See id. at 7-8, 11, 19).     This “stood out completely [to him]” and he

thought: “[t]hese are the two guys from that robbery because of that

firearm, the way it was positioned in his pocket.” (Id. at 19).

      Cpl. Shave exited the store and notified shift supervisor Cpl. Jeffrey

Ingemie that “[he] had observed [two] subjects [who] appeared to have

matched the description of a robbery, specifically one with a firearm tucked

in his pocket, and [he] asked [Cpl. Ingemie] to respond to assist.” (Id. at

14; see id. at 27, 36, 45). Multiple officers responded to the Walgreens,

including Cpls. Ingemie and Sean Dowds. Appellant remained in the store,

and Mr. Ernay returned to his vehicle. Cpl. Ingemie investigated Mr. Ernay,

and determined that he was legally carrying the firearm. While Cpl. Ingemie

was investigating Mr. Ernay, he noticed that Appellant was pacing inside of

the store near the cash registers and staring at the officers, without

purchasing anything.     Cpl. Ingemie directed Cpl. Dowds to speak to

Appellant.

      Cpl. Dowds entered the store accompanied by Police Officer Chris

McCarthy, and they approached Appellant. Cpl. Dowds told Appellant that

he would like to speak to him and requested identification.       Appellant

produced his license, and Officer McCarthy returned to his patrol vehicle to

                                     -3-
J-A32036-16



run it.   Cpl. Dowds asked Appellant to step outside of the store with him,

Appellant assented, and the two men walked outside of the store towards

the patrol vehicle. Cpl. Dowds asked Appellant if he could pat him down for

safety, and Appellant did not respond.              Cpl. Dowds proceeded to pat

Appellant down, checking for weapons, “for [his] safety,” and because “in

[his] training and experience, where there’s one gun, there possibly could be

two guns.” (Id. at 45; see id. at 43-46). The pat down revealed a loaded

handgun in Appellant’s waistband.              Cpl. Dowds detained Appellant, and

police determined that he is a prior convicted felon, and is ineligible to have

a license to carry a firearm.

       Prior to trial, Appellant filed a motion to suppress evidence, which the

trial court denied on October 29, 2015, following a hearing. The trial court

found Appellant guilty of the above-mentioned offenses after a stipulated

facts trial on December 18, 2015.              On March 28, 2016, the trial court

sentenced Appellant to a term of not less than three and a half nor more

than eight years’ incarceration, followed by three years of probation. This

timely appeal followed.4

       Appellant raises the following issues for our review:


____________________________________________


4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 17, 2016. The trial
court issued an opinion on May 23, 2016, in which it adopted its opinion
entered on October 29, 2015, for the reasons for its decision. See Pa.R.A.P.
1925.



                                           -4-
J-A32036-16


       A. Did the [t]rial [c]ourt commit legal error in finding that the
       Corporal Shawn Dowds had reasonable suspicion to stop and
       frisk the Appellant?

       B. Did the [t]rial [c]ourt commit legal error in denying the
       Appellant’s pre-trial motion to suppress the evidence obtained
       during this encounter?

(Appellant’s Brief, at 2).5

       On appeal, Appellant argues the trial court erred in finding that Cpl.

Dowds was justified in conducting the investigatory detention because the

officer lacked the requisite reasonable suspicion. (See Appellant’s Brief, at

7-16). He contends that the court’s focus should have been on Cpl. Dowds’

knowledge at the time of the stop, and that the officer did not have

reasonable suspicion that Appellant was involved in criminal activity. (See

id. at 10).     Cpl. Dowds had not personally observed Appellant’s pacing or

failure to purchase items in the store, he had no information as to whether

Appellant was armed, and the only knowledge he had was that Appellant

might have matched the general description of the robbery suspect. (See

id. at 10-11, 15).       Appellant further maintains that because Cpl. Dowds

illegally detained and searched him, the court should have suppressed the

firearm found during the pat-down.             (See id. at 16). This issue does not

merit relief.


____________________________________________


5
  Although framed as two separate issues, the claims Appellant raises on
appeal are interrelated and challenge the trial court’s denial of his motion to
suppress evidence. We will therefore address the claims together.



                                           -5-
J-A32036-16


           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.        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.

          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.

           It is well-established that there are three categories of
     interaction between citizens and police officers. . . .

           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. Ranson, 103 A.3d 73, 76–77 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015) (citations omitted).


                                   -6-
J-A32036-16



        Instantly, Cpl. Dowds’ action in patting Appellant down for weapons

was a Terry6 frisk.

        A Terry frisk is a type of investigative detention requiring
        reasonable suspicion that criminal activity is afoot and that the
        individual whose suspicious behavior [an officer] is investigating
        at close range is armed and presently dangerous to the officer or
        to others. The purpose of a Terry frisk is not to discover
        evidence of a crime, but to protect the police officer conducting
        the investigation.

               The reasonable suspicion necessary to conduct a Terry
        frisk and, in fact, all investigative detentions

              is a less demanding standard than probable cause
              not only in the sense that reasonable suspicion can
              be established with information that is different in
              quantity or content than that required to establish
              probable cause, but also in the sense that reasonable
              suspicion can arise from information that is less
              reliable than that required to show probable cause.

               The determination of whether an officer had reasonable
        suspicion that criminality was afoot so as to justify an
        investigatory detention is an objective one, which must be
        considered in light of the totality of the circumstances. In
        assessing the totality of the circumstances, a court must give
        weight to the inferences that a police officer may draw through
        training and experience. Also, the totality of the 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.




____________________________________________


6
    Terry v. Ohio, 392 U.S. 1 (1968).



                                           -7-
J-A32036-16



Commonwealth v. Davis, 102 A.3d 996, 999–1000 (Pa. Super. 2014),

appeal denied, 113 A.3d 278 (Pa. 2015) (citations and quotation marks

omitted).

      In addition,

      The officer need not be absolutely certain that the individual is
      armed; the issue is whether a reasonably prudent man in the
      circumstances would be warranted in the belief that his safety or
      the safety of others was in danger. The existence of reasonable
      suspicion to frisk an individual must be judged in light of the
      totality of the circumstances confronting the police officer.

Commonwealth v. Cooper, 994 A.2d 589, 592–93 (Pa. Super. 2010),

appeal denied, 13 A.3d 474 (Pa. 2010) (citation omitted).

      “A police officer need not personally observe unusual or suspicious

conduct reasonably leading to the conclusion that criminal activity is afoot

and that a person is armed and dangerous[,]” and may rely upon

information provided by other officers.   Commonwealth v. Jackson, 519

A.2d 427, 430 (Pa. Super. 1986) (citation omitted). “Moreover, whether the

defendant was located in a high crime area similarly supports the existence

of reasonable suspicion.”   Commonwealth v. Foglia, 979 A.2d 357, 361

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

(citation omitted).

      Here, while at a drugstore located in a high crime area in close

proximity to where a robbery had occurred the day before, Cpl. Shave

observed two men who matched the general description of the robbery

suspects enter the store together. (See N.T. Suppression, at 7, 9-10, 19).


                                    -8-
J-A32036-16



Importantly, one of the men was carrying a firearm in the exact same

dangerous and highly unusual manner as one of the robbery suspects. (See

id. at 7-8, 13, 19). Because of his concern for safety, Cpl. Shave requested

police assistance, and relayed to the other officers his observations. (See

id. at 8, 13-14, 27, 36, 45). Upon police arrival at the drugstore, Appellant

paced and stared at the officers, remaining in the store without purchasing

anything, while police investigated his companion. (See id. at 29-31). Cpl.

Dowds then engaged Appellant and conducted a pat-down search to

determine whether he was carrying a weapon, “for [his] safety,” and

because “in his training and experience, where there’s one gun, there

possibly could be two guns.” (Id. at 45; see id. at 43-44, 46).

      Based on the foregoing, in light of the totality of the circumstances,

and giving weight to the inferences Cpl. Dowds drew based on his training

and experience, we conclude that the investigatory detention was supported

by reasonable suspicion of criminal activity, and Cpl. Dowds’ justifiable belief

in the need to protect officer safety.     See Davis, supra at 999–1000;

Cooper, supra at 592–93. Thus, the trial court properly denied Appellant’s

motion to suppress evidence. See Ranson, supra at 76–77. Accordingly,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.




                                     -9-
J-A32036-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2017




                          - 10 -
