J-A08004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

VERQUEL JOHNSON

                                                      No. 3446 EDA 2015


                    Appeal from the Order October 15, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000968-2015


BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 14, 2017

        The Commonwealth of Pennsylvania appeals from the order that

suppressed evidence seized from Appellee, Verquel Johnson, after he fled

from an investigative detention. The Commonwealth argues that police had

a reasonable suspicion that Johnson was involved in criminal activity when

they stopped him from moving his parked car. After careful review, we

conclude that while the suppression court’s factual findings are supported by

the record, it erred in concluding that the officer did not have a reasonable

suspicion that Johnson was involved in criminal activity. We therefore

reverse and remand for further proceedings.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        The Commonwealth charged Johnson with violations of the Uniform

Firearms Act and resisting arrest. Johnson filed a motion to suppress

evidence of the firearm in his possession when he was arrested and of his

actions in fleeing from the police and resisting arrest. After a hearing, the

suppression court granted his motion, and the Commonwealth filed this

timely appeal.1

        “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012)

(citations omitted). When we review an order suppressing evidence, we may

consider only the evidence of the prosecution that remains uncontradicted.2

See Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015).

We are not bound by the suppression court’s legal conclusions and review

the suppression court application of the law to the facts de novo. See id.

        In contrast, we defer to the suppression court’s findings of fact as it is

in the bailiwick of the suppression court to assess the credibility of witnesses

and the weight to be given to their testimony. See id. “It is within the

____________________________________________


1
  The Commonwealth certified in its notice of appeal that the suppression
order would terminate or substantially handicap the prosecution of Johnson,
thereby perfecting our jurisdiction under Pa.R.A.P. 311(d).
2
    Johnson did not present any witnesses at the suppression hearing.



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suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given to their testimony. The suppression

court is free to believe all, some or none of the evidence presented at the

suppression hearing.” Commonwealth v. Elmobdy, 823 A.2d 180, 183

(Pa. Super. 2003) (citation omitted).

     The suppression court provided the following factual findings, which

are adequately supported by the record before us.

     On November 22, 2014, at approximately 12:40 a.m.,
     Philadelphia Police Officer Mark Marchetti was on duty, working
     alone, in full uniform and a marked police car, when he received
     a radio call of a burglary in progress on the 6500 block of
     Linmore Avenue. The flash information described the suspects as
     two black males, one with a black hoodie and one with a gray
     hoodie. Officer Marchetti and several other marked patrol cars
     responded to the radio call. As Officer Marchetti was driving
     down the 6500 block of Linmore Avenue, he observed two black
     individuals [Johnson and a passenger] sitting in a parked silver
     Chevy (hereinafter, “Chevy”). Officer Marchetti put his car in
     reverse and pulled next to the Chevy. As he was backing up,
     Officer Marchetti smelled marijuana; he did not smell it before
     he backed up. Officer Marchetti could not tell where the smell
     was emanating from. The Chevy was subsequently searched and
     no marijuana was recovered.

     When Officer Marchetti stepped out of his vehicle [Johnson] and
     the passenger jumped out of the Chevy and took flight.
     [Johnson] ran eastbound and the passenger ran westbound.
     Officer Marchetti pursued the passenger and he yelled to an
     officer, who was [] eight houses away, to stop [Johnson]. Officer
     Marchetti stopped and detained the passenger. Officer Kline
     stopped and detained [Johnson].

     [In his written incident report], Officer Marchetti noted that
     [Johnson and his passenger] attempted to flee during the vehicle
     stop. Officer Marchetti agreed that it was going to be a vehicle
     investigation. Officer Marchetti acknowledged that when he
     backed up his car to the Chevy, he did so in such a way to block

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      the occupants in. Officer Marchetti acknowledged that he wanted
      to investigate the occupants of the Chevy. He acknowledged that
      the occupants were not at the scene of the reported burglary.

      …

      At the close of the [suppression] hearing, the [suppression
      court] issued the following findings of fact. On November 22,
      2015, [Johnson] was subjected to an investigative stop when
      Officer Marchetti blocked the egress of the car in which
      [Johnson] was sitting. Officer Marchetti did not observe
      [Johnson] engage in any criminal activity.

Suppression Court Opinion, 6/30/16, at 1-3 (citations omitted).

      On appeal, the Commonwealth does not challenge the suppression

court’s finding that Officer Marchetti effected an investigatory detention of

Johnson when he blocked Johnson’s vehicle in. Rather, the Commonwealth

challenges the suppression court’s conclusion that Officer Marchetti lacked

sufficient reasonable suspicion at that time to justify the investigatory

detention.

      Our Supreme Court has defined three levels of interaction between

citizens and police officers: (1) a mere encounter, (2) an investigative

detention, and (3) a custodial detention. See Commonwealth v. Fuller,

940 A.2d 476, 478 (Pa. Super. 2007). In order to justify an investigative

detention, an officer must identify specific, articulable facts that lead to a

reasonable suspicion that the detainee is engaged in criminal activity.

Commonwealth v. Stevenson, 894 A.2d 759, 771 (Pa. Super. 2006). This

determination is an objective one, based upon the facts available to the

officer at the time. See id.

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      Here, Officer Marchetti testified that he was responding to a report of a

burglary in progress on the 6500 block of Linmore Avenue at approximately

1 a.m. See N.T., Suppression Hearing, 10/15/15, at 7-8. He followed two

other police vehicles down the 6500 block. See id., at 8. As he started down

the block, he observed four people standing outside. See id., at 9. He did

not stop to investigate those people, as he did not believe that they matched

the description of the suspects involved in the burglary. See id., at 9-10.

      Farther down the block, he observed two individuals in a parked silver

Chevrolet. See id., at 12. He could not identify whether the individuals in

the car were male or female. See id. He proceeded to back up his vehicle to

block the silver Chevrolet in. See id., at 25-27.

      The trial court concluded that this testimony does not provide specific,

articulable facts to support a finding of reasonable suspicion. We disagree.

Officer Marchetti was responding to a burglary in progress call, which

identified two males as suspects. While driving down the same block of the

suspected burglary, he observed two individuals sitting in a parked car.

      It is true that he did not investigate the four individuals who were

standing outside on the same block as he passed them. But he testified that

he did not believe that they matched the description of the suspects.

Instead, he decided that two individuals sitting in a parked vehicle closer to

the location of the suspected burglary required further investigation. He




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could not identify their gender as he passed by, and decided to back up to

determine whether they matched the description of the suspects.

      These circumstances are sufficient to justify Officer Marchetti’s

initiation of an investigative detention. He could not determine whether the

two individuals in the silver Chevrolet matched descriptions of the suspects

in the burglary call without further investigation. Similarly, he did not desire

to have the individuals flee before he could make that determination. These

are specific, articulable facts that are objectively reasonable and that

support a finding of reasonable suspicion. The suppression court erred in

concluding otherwise. As a result, we reverse and remand for further

proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

      President Judge Emeritus Stevens joins the memorandum.

      Judge Lazarus files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2017




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