J-S74042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

TYRONE HOLLOWAY

                                                    No. 1530 EDA 2016


                   Appeal from the Order April 15, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006776-2015


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                             FILED MAY 03, 2018

     Appellant, the Commonwealth of Pennsylvania, appeals the order

entered April 15, 2016, granting the motion to suppress filed by Appellee,

Tyrone Holloway. We affirm.

     The suppression court discussed the facts of this case as follows:

     On April 1, 2015, at approximately 10:27 p.m., uniformed police
     officers Kamedula and Barrie arrived in a marked police vehicle at
     the Blumberg Housing Projects on the 2300 block of Bolton Street
     in Philadelphia. The officers then received a radio call that men
     and women were in front of 2300 Bolton Street fighting and a
     firearm was present. A 9-1-1 call came in that provided additional
     information: “a large crowd of people fighting, and one person was
     armed with a firearm.” The 9-1-1 caller also stated there were
     males and females dressed in all black Muslim attire. The caller,
     however, noted that he could not see their faces.

     Upon arrival at the location, the police officers observed Appellee
     and another man entering a red Dodge Durango.               Officer
     Kamedula testified that “after looking in our direction, they
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       entered the vehicle and turned the vehicle on.” The other people
       in the area were “further up walking towards the high rise
       building.” Officer Kamedula immediately approached Appellee’s
       vehicle and opened the door. Appellee exited the vehicle, swatted
       the officer’s hand and began to run away. Officer Kamedula
       observed Appellee throwing a black pistol shaped object to the
       ground. Following the apprehension of Appellee, Officer Kamedula
       searched him and recovered drugs.

       A second set of police officers arrived at the scene shortly
       thereafter. Officer James Mooney testified that he found the
       firearm in the vicinity where Officer Kamedula witnessed Appellee
       throwing the pistol shaped object. Appellee was approximately
       fifty (50) yards away when the firearm was recovered.

See Suppression Court Opinion (SCO), 2/7/17, at 2 (citations to the record

omitted).

       Appellee was arrested and charged with persons not to possess

firearms, firearms not to be carried without a license, intent to possess a

controlled substance, and carrying firearms in public in Philadelphia.1 Prior to

trial, Appellee filed a suppression motion.

       At the suppression hearing, following the testimony of Officers

Kamedula, Barrie, and Mooney, as well as Appellee’s testimony in his own

defense, the court granted Appellee’s motion to suppress, finding that officers

had no reasonable suspicion at the time of the stop. See SCO at 3. The

Commonwealth filed a motion for reconsideration, which was denied.          The



____________________________________________


1 See 18 Pa.C.S. § 6105(a)(1), 18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-
113(a)(16), and 18 Pa.C.S. § 6108, respectively.




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Commonwealth timely filed this interlocutory appeal.       2   The Commonwealth

filed a statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and the suppression court issued a responsive opinion.

       On appeal, Appellant raises a single issue for our review:

       Did the lower court err in suppressing the recovered gun and
       illegal drugs found on [Appellee’s] person where police officers,
       arriving at a high crime area in response to a call of a person with
       a gun, saw [Appellee], fitting the description, look in their
       direction; flee into a parked vehicle; strike one of the officers when
       told to exit the vehicle; flee on foot; and discard a gun?

Appellant’s Brief at 1.

       The Commonwealth argues that the court erred in granting Appellee’s

motion to suppress. See Appellant’s Brief at 6. The Commonwealth contends

that police were within their authority to approach Appellee when they first

saw him, arguing that reasonable suspicion was unnecessary.            Id. at 6-7.

Further, the Commonwealth contends that notwithstanding the court’s

characterization of Appellee “walking” towards the car, Appellee was actually

attempting to “withdraw in order to avoid the police,” or flee, which provided

officers with reasonable suspicion to stop. Id. at 8.

       When the Commonwealth appeals from a suppression order:


____________________________________________


2  In its notice of appeal, the Commonwealth certified that the trial court’s
order denying its motion to admit evidence of prior bad acts pursuant to
Pa.R.E. 404(b) terminates or substantially handicaps the prosecution. See
Pa.R.A.P. 311(d) (permitting interlocutory appeal where Commonwealth
certifies with its notice of appeal that order terminates or substantially
handicaps prosecution).      Thus, the appeal is properly before us. See
Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa. Super. 2016).

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     we follow a clearly defined standard of review and consider only
     the evidence from the defendant’s witnesses together with the
     evidence of the prosecution that, when read in the context of the
     entire record, remains uncontradicted. The suppression court’s
     findings of fact bind an appellate court if the record supports those
     findings. The suppression court’s conclusions of law, however, are
     not binding on an appellate court, whose duty is to determine if
     the suppression court properly applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012).

     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, our analysis hinges on the level of suspicion required at the

moment of the stop, i.e., whether it constituted a mere encounter or an

investigative detention. Our Court has previously observed that

     [t]o determine whether a mere encounter rises to the level of an
     investigatory detention, we must discern whether, as a matter of
     law, the police conducted a seizure of the person involved. To
     decide whether a seizure has occurred, a court must consider all
     the circumstances surrounding the encounter to determine
     whether the demeanor and conduct of the police would have
     communicated to a reasonable person that he or she was not free
     to decline the officer’s request or otherwise terminate
     the encounter. Thus, the focal point of our inquiry must be
     whether, considering the circumstances surrounding the incident,
     a reasonable person innocent of any crime, would have thought
     he was being restrained had he been in the defendant’s shoes.


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Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa. Super. 2002)

(citations omitted).

      Here, a reasonable person would have concluded that he was not free

to leave.   Appellee had gotten into the passenger seat of the car, and

Appellee’s companion had turned the car on. See Notes of Testimony (N.T.),

4/15/16, at 20, 140. Officers Kamedula and Barrie approached the car from

both sides, and Officer Kamedula ordered Appellee to put his hands in the air

and step out of the car. Id. at 20-22, 140. Officer Kamedula then opened

the car door, effectively preventing the men from driving away. Id. Because

a reasonable person would not have felt free to terminate this encounter, it

constituted an investigatory detention and, accordingly, required reasonable

suspicion. See Reppert, 814 A.2d at 1201-02.

      Thus, we must determine whether the officers had reasonable suspicion

to stop Appellee’s car in the first instance. See Commonwealth v. Zhahir,

751 A.2d 1153, 1156 (Pa. 2000) (citing Terry v. Ohio, 88 S. Ct. 1868, 1879

(1968)) (noting that the justification of a ‘stop and frisk’ must be justified at

its inception and be reasonably related in scope to the circumstances justifying

the interference in the first place).    It is true that evasive and suspicious

behavior in a high crime area, unprovoked flight, and training and experience,

may provide the requisite reasonable suspicion.       See Commonwealth v.

McCoy, 154 A.3d 813, 819 (Pa. Super. 2017) (emphasis added). However,

mere presence in the vicinity of a recently reported crime does not justify a

stop. See Commonwealth v. Jackson, 519 A.2d 427, 432-33 (Pa. Super.

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1986). Further, merely walking away from police officers on their approach

in a high crime area does not, without more, provide officers with reasonable

suspicion to justify an investigatory stop and search. See In re J.G., 860

A.2d 185, 189 (Pa. Super. 2004).

      Here, the suppression court concluded that Officer Kamedula did not

have reasonable suspicion to stop Appellee. Particularly, the court noted that

the 911 call did not contain any flash information or description of the

combatants but only stated that males and females were fighting in front of

the housing project and one of them was armed.         See N.T. at 139.      The

combatants were dressed in all black, and their faces were concealed. Id.

There was no description of a car, red Dodge Durango or otherwise, involved

in the fight. Id. Thus, there was no description linking the crime to Appellee.

Further, although the Commonwealth now attempts to characterize Appellee’s

initial movements toward the car as “fleeing” or “evading,” as the suppression

court correctly notes, Officer Kamedula’s own testimony establishes that

Appellee “walked” towards the car. Id. at 140; see also SCO at 4. Although

Officer Kamedula opined that Appellee got into the vehicle to leave the scene,

that is of no moment.

      As the suppression court observed,

      It is not suspicious or illegal behavior to look in the direction of
      police officers. Nor does [Appellee’s] mere presence in the vicinity
      of a recently reported crime justify a stop. Further, walking away
      from the police does not rise to reasonable suspicion. The
      behavior and actions specified above do not rise to reasonable
      suspicion of criminal activity afoot. Officer Kamedula had no legal


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     basis, as clearly articulated by his own testimony, to stop
     [Appellee], and thus any subsequent behavior and/or evidence
     should be suppressed as fruit of the poisonous tree.

See SCO at 4-5 (citations omitted).

     We agree. Accordingly, for the reasons outlined above, the suppression

court properly granted Appellee’s motion and suppressed all physical evidence

recovered from the scene. See Miller, 56 A.3d at 1278-79.

     Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/18




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