J-S01040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TONY BURTON

                            Appellant                   No. 2913 EDA 2014


             Appeal from the Judgment of Sentence June 27, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005522-2012


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED JANUARY 12, 2016

        Appellant, Tony Burton, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions of persons not to possess firearms, firearms not to be

carried without a license, and carrying firearms on public streets in

Philadelphia.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.2

____________________________________________


1
    18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
2
  We observe Appellant’s Rule 1925(b) statement was untimely.
Nevertheless, we decline to waive Appellant’s issue because the trial court
(Footnote Continued Next Page)
J-S01040-16


      Appellant raises the following issue for our review:

          WHETHER THE [TRIAL] COURT ERRED IN DENYING
          [APPELLANT’S] MOTION TO SUPPRESS WHERE THE FACTS
          AND CIRCUMSTANCES DID NOT SUPPORT EITHER THE
          COURT’S FINDING OF THERE BEING REASONABLE
          SUSPICION TO STOP [APPELLANT] OR THERE BEING
          PROBABLE CAUSE TO ARREST [APPELLANT].

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Lisette

Shirdan-Harris, we conclude Appellant’s issue merits no relief.              The trial

court’s   opinion      comprehensively       discusses   and   properly   disposes   of

Appellant’s question presented. (See Trial Court Opinion, filed April 2, 2015,

at 5-7) (finding: based on totality of circumstances, police had reasonable

suspicion to stop and investigate Appellant, as police heard gunshots in early

morning hours giving rise to reasonable suspicion criminal activity was

afoot; Appellant and acquaintance were present in exact area where police

heard gunshots, and Appellant was visibly holding beer and walking away

from police at fast pace; police officers clearly observed handgun on

Appellant’s person upon lawful stop and subsequent investigative detention;

police officers’ actions were reasonable because they were guided by

common-sense concern for officer safety during encounter with armed
                       _______________________
(Footnote Continued)

received the statement and ultimately addressed Appellant’s issue in a
written opinion. See Commonwealth v. Burton, 973 A.2d 428 (Pa.Super.
2009) (en banc) (allowing for immediate review under these circumstances).



                                            -2-
J-S01040-16


suspect; police also had probable cause to arrest Appellant, when veteran

police officers observed Appellant and acquaintance walking quickly down

street where officers had heard multiple gunshots moments earlier;

Appellant had firearm visible in waistband; combined factors provided

officers with reasonably trustworthy information to believe Appellant had

committed firearms offense; seizure of Appellant’s weapon was permissible

incident to his lawful arrest; firearm was also in plain view of officers from

lawful vantage point, and it was immediately apparent to officers that

firearm   could   be   considered    incriminating     evidence   in     shooting

investigation). The record supports the court’s decision to deny Appellant’s

suppression motion.       Therefore, we    have   no    reason to      disturb   it.

Accordingly, we affirm on the basis of the court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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      APR X 2 2015
                                         IN THE COURT OF COMMON PLEAS
  Criminal RPP.~a,.s Unit           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
First Judicia\ o,stnct of PA                 CRIMINAL TRIAL DIVISION


              COMMONWEALTH OF
              PENNSYLVANIA                                                             PHILADELPHIA COUNTY

                                                                                       CP-51-CR-0005522-2012
                   v.
                                         CP-51-CR-0005522-2012 Camm. v. Burton, Tony
                                                          Opinion
              TONY BURTON                                                              SUPERIOR COURT NO.:

                   Appellant                 1111111111111111111111111                     2913 EDA 2014
                                                     7277502421

                                                               OPINION

                   The defendant appeals this Court's denials of his motion to suppress and motion for

           reconsideration in the above captioned matter. The Court submits the following Opinion in

           accordance with the requirements of Pa R.A.P. 1925. For the following reasons, this Court's

           decisions should be affirmed.

                                                I.         PROCEDURAL HISTORY

                   Defendant, Tony Burton, was arrested on March 17, 2012 and charged with various
                               1•
           weapons offenses         A waiver trial was scheduled for August 5, 2013, and the defense filed a

          pre-trial motion to suppress the physical evidence. Immediately prior to trial, testimony was

          taken on the defense's motion which was ultimately denied by this court. The waiver trial

           immediately followed and the defendant was found guilty on all three counts and subsequently

          sentenced on June 27, 2014 to five to ten years on the §6105 charge; followed by a

          consecutive sentence of one to two years on the §6106 charge to be served concurrently to a

          one to two year sentence on the §6108 charge. Defendant filed a motion for reconsideration




          I
            Defendant was charged with 18 § 6105§§A l Possession ofa Firearm Prohibited; 18 §6106 §§Al Firearm not
          to be Carried without a License; and, 18 § 6108 Carrying a Firearm on the Public Streets of Philadelphia.


                                                                                                                              C:"'
                                                                                                                                ~,;'    .
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of the sentence on July 2, 2014 and it was denied by order of this Court ninety days later, on

September 30, 2014.

        On October 16, 2014 the defendant filed the instant appeal followed by a Statement of

Errors provided verbatim (in relevant part) below:

        "1. The trial court erred in denying the Defendant's Motion to Suppress based upon:

                a.    There being a lack of reasonable suspicion to stop and investigate the

                     Defendant; and

                b.   There being a lack of probable cause to arrest the Defendant and seize

                     from his person a hand-gun found to be in his possession ...

        2. The trial court erred in denying the Defendant's Motion For{sic} Reconsideration

           of his sentence in this matter by operation Of [sic] law."

The defendant's claims are without merit, and for the reasons set forth below, the motion

rulings should be affirmed.

                                 II.           FACTUAL BACKGROUND

    At the hearing on defendant's motion to suppress (the "hearing"), the Commonwealth

presented the testimony of Philadelphia Police Officers Donnell Creighton, Michael Pezzeca,

James Mostiller and Reinaldo DeJesus. The defendant also testified at the hearing. By

agreement of the parties, all admissible non hearsay testimony from the hearing was

incorporated into the trial record.    N. T.   8/5/13 at 63. At trial, the Commonwealth presented

additional evidence and testimony from Philadelphia Detective DiLauro. Id. at 72. The

credible testimony and evidence offered by the Commonwealth and its witnesses established

the following. On March 17, 2012, at approximately 5:50A.M., as daylight was approaching,

Police Officers Creighton and Delesus were both separately performing their routine patrols

in the area of 46th and Lancaster A venue in Philadelphia County when each heard numerous

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 (five to six) gunshots in the area. Id. at 6, 15-16 and 35. Officer Creighton first arrived,

 within seconds, in the vicinity where the shots were heard and observed two males walking

 quickly southbound on 46th Street, away from Lancaster Avenue. Id. at 6 and 42. Officer

 Creighton stopped one of the males (later identified as Troy Overton - an acquaintance of the

 defendant) for investigative purposes after observing him bend down near the tire of a parked

 white pick-up truck before standing up and continuing to walk quickly northbound on the

 street. Id. at 7, 9 and 48. Immediately thereafter, Officer DeJesus arrived in the vicinity of

 where the gunshots were heard and immediately observed Officer Creighton stopping Mr.

 Overton and also saw the defendant walking southbound at a fast pace. Id. at 35. Officer

 DeJesus began to follow the defendant, observing that he had a beer in his hand. Id. at 40.

        Officers Pezzeca and Mostiller quickly arrived on the scene after hearing Officer

 Creighton's report over the radio about gun shots in the area. Id. at 12. These Officers had

inadvertently pulled their patrol car directly in front of the defendant who was holding a beer

can and continuing to walk away from Officer DeJesus at a quick pace. Id. at 17-18. Officer

DeJesus called out for the defendant to "stop" for investigative purposes, and when the

defendant failed to stop, Officer DeJesus instructed Officers Pezzeca and Mostiller to "stop

him". Id. at 12 -13, 24 and 36. The Officers exited their vehicle and as they approached the

defendant, from a distance of about twenty feet, they observed the handle and top of the slide

of a handgun visible in the left side of the defendant's waistband. Id. at 12-13, 24 and 29.

Officer Pezzeca yelled to the other Officers that defendant "has a gun" and when defendant

failed to stop walking pursuant to their verbal requests, the Officers took him to the ground,

recovered the weapon from his waistband and placed him in handcuffs. Id. at 14 and 23.

   Detective DiLauro arrived on the scene and his investigation of that block revealed a

parked silver Volvo sedan where both front tires were flat and appeared to be shot out from

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 gunfire. Id. at 73. The detective also discovered two .9 millimeter FCCs on the passenger's

 side as well as the driver's side. Id. Additionally, a .9 millimeter handgun was recovered on

'top of the rear passenger side tire of the white pick-up truck that where Mr. Overton was seen

 bending down. Id. The parties stipulated that the firearm recovered from the defendant was

 operable and that based on a previous conviction, the defendant was not eligible to possess a

 firearm under 18 § 6105. Id. at 75-76. Additionally, a certificate of non licensure for the

 defendant was entered into evidence, showing that he did not have a license to possess a

 firearm. Id. at 76.

                                 III.    STANDARD OF REVIEW

    "In reviewing a ruling on a suppression motion, the standard of review is whether the

factual findings and legal conclusions drawn therefrom are supported by the evidence." Com.

v. Kuzmanko, 709 A.2d 392, 396 (Pa. 1998). Additionally, "[w]here the record supports the

findings of the suppression court, [the reviewing court] is bound by those facts and may

reverse only if the legal conclusions drawn therefrom are in error." Id. at 396. "The

suppression court has sole authority to assess the credibility of the witnesses and is entitled to

believe all, part, or none of the evidence presented." Com. v. Shine, 784 A.2d 167, 168 (Pa.

Super. 2001).

                                        IV.    DISCUSSION

    On appeal, defendant claims that this Court erred in denying his motion to suppress,

alleging that the police improperly stopped, investigated, seized his weapon, and arrested him

without reasonable suspicion or probable cause. See Statement of Errors. Three basic

categories have been established when looking at the interactions that take place between

citizens and police. The first category is known as mere encounter or request for information

and does not need to be supported by any level of suspicion. Commonwealth v. Smith, 836

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A.2d 5, 10 (Pa.         2003). Investigative detentions make up the second category and must

 be supported by reasonable suspicion. Id. Despite the fact that an individual is stopped and

 subjected to a period of detention, investigative detentions do not involve such coercive

conditions as to rise to the level of the functional equivalent of arrest. Id. The final category,

known as an arrest or custodial detention, must be supported by probable cause. Id.

    A. Based On The Totality of The Circumstances The Investigative Detention Was

        Lawful

    The stop in the instant case was a lawful investigative stop. When detaining an individual

for investigative purposes, commonly known as a Terry stop, the police must have reasonable

suspicion that criminal activity is afoot. Com. v. Griffin, 954 A.2d 648, 651 : CPo .6vpe.r. AOO~). -Poli'ce..

officers must have an articulable reason for stopping the individual. Id    .a.+ ~!>IJ-. In ma..k'.inj the
determination of whether the information provided to authorities rises to the level required for

reasonable suspicion, the court should employ a "totality of the circumstances test." Id. When

assessing the reasonableness of an officer's decision to stop a suspect and perform an

investigatory detention the trial court must be guided by common sense concerns that give

preference to the safety of the police officer during an encounter with a suspect where

circumstances indicate that the suspect may have a weapon. Commonwealth v. Stevenson, 894

A.2d 759, "11a (Pa. Super. 2006).

       In the instant case, based on the totality of the circumstances, the police had the

required reasonable suspicion to stop and investigate the defendant. The audible sound of

gunshots heard by the officers in the area provided reasonable suspicion that criminal activity

was afoot, as required by Griffin. The presence of the defendant (and his acquaintance) in the

exact area where gunshots were heard by police, in the early morning hours, where defendant

was visibly holding a beer and walking away from the officers at a fast pace provided

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articulable reasons to stop and investigate the defendant. Upon performing the lawful stop

and subsequent investigative detention of the defendant, the officers clearly observed a

handgun on the defendant's person. N.T. 8/5/13 at 12-13, 24 and 29. The reasonableness of

the officers' actions was guided by common sense concerns that gave preference to officer

safety during an encounter with an armed suspect was proper under Stevenson. Accordingly,

this Court did not err.

    B. The Officer Had Probable Cause to Arrest the Defendant

        The defendant alleges that the police lacked probable cause to arrest him and to seize

his handgun. See Statement of Errors. There is probable cause to arrest a defendant when the

facts and circumstances known to the police officers are derived from reasonably trustworthy

information and are sufficient to warrant a person of reasonable caution to believe that the

person to be arrested committed an offense. Commonwealth v. Dommel, 885 A.2d 998, 1002

(Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007). Additionally, under the plain

view doctrine, the warrantless seizure of evidence which is in plain view is permissible when

two criteria are met: first, the evidence must be seen from a lawful vantage point; second, it

must be immediately apparent to the viewer that the object observed is incriminating

evidence. Commonwealth v. Ellis, 662 A.2d 1043, 1049 (Pa.              1995).

       In the instant case, the defendant was arrested after several veteran police officers

heard multiple gunshots in the area, in the early hours of the morning, and quickly arrived on

the scene to investigate a crime involving gunshots. See N.T. 8/5/13. The officers observed

the defendant and his acquaintance walking quickly down the street where the gunshots were

heard moments earlier - the defendant with a beer in his hand; and, a firearm visible in his

waistband. All of these combined factors provided the officers with reasonably trustworthy

information to warrant the belief that the defendant had committed a firearms offense.

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 Because there was probable cause to arrest the defendant who had a visible handgun in his

 waistband, the seizure of the weapon was permitted incident to his lawful arrest. The plain

 view doctrine is also applicable as both criteria established under Ellis were met - the weapon

 was clearly seen from a lawful vantage point by several officers and it was immediately

 apparent to them that the gun could be considered incriminating evidence regarding the

 shooting that they were investigating. See Ellis, 662 A.2d at 1049. Accordingly, police

 seizure of the handgun was permissible and this Court did not err.

     C. This Court Did Not Err in Denying Defendant's Motion for Reconsideration

    Defendant's Statement of Errors claims that this court "erred in denying the Defendant's

Motion For [sic] Reconsideration of his sentence in this matter by operation Of [sic] law".

Defendant's claim is defective both procedurally and substantively. Pursuant to Pa. R. Crim.

P. 720 (B)(3)(a), (b) a post trial motion is only deemed denied "by operation of law" when

the deciding court fails to render a judgment before the applicable one hundred and twenty

day disposition period. This court issued an order denying the motion ninety days after it was

filed, and accordingly, the motion was not denied "by operation of law" as defendant alleges.

Additionally, "a purported appeal from an order denying post-trial motions is procedurally

improper because the appeal in a criminal proceeding lies from the judgment of sentence, i.e.,

the final order imposing sentence". Commonwealth v. Kittelberger, 616 A.2d 1 at FNI (Pa.

Super. 1992). Based on these procedural defects alone, the defendant's appeal should be

dismissed.

    Such an appellate claim is more properly characterized as one from the judgment of

sentence rather than an order denying reconsideration. Id. Even when reviewing defendant's

claim in this light - error involving the judgment of sentence - it remains substantively




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defective as this court did not err. Defendant's July 2, 2014 post trial motion for

reconsideration of sentence states in relevant part that:

       "2 ....   [Defendant] was sentenced by this Honorable Court on June 27, 2014
       to an aggregate sentence of six to twelve (6-12) years of incarceration, which
       was a guideline sentence. 3. However, [defendant] was subsequently found
       to be in direct violation by the Pennsylvania Board of Probation & Parole2•
        [Defendant]      was    found     in   violation     and    sentenced     to three      years
       "backtime"/incarceration, which by operation of law will run consecutively to
       this Honorable Court's sentence.            4. As a result, [defendant] will serve a
       minimum of nine (9) years in state incarceration. WHEREFORE, [defendant]
       respectfully      requests       that   this     Honorable       Court     reconsider      his
       sentence."(emphasis         added).      See Defendant's July 2, 2014 Motion for
       Reconsideration of Sentence.


       Sentencing is a matter "within the sound discretion of a trial court." Commonwealth v.

Simpson, 510 A.2d 760 (Pa. Super. 1986).              The trial court, however, must exercise its

discretion in view of statutory guidelines and considerations. Commonwealth v. Hollerbush,

444 A.2d 1235 (Pa. Super. 1982). When exercised in light of these guidelines and

considerations, the sentence will not be disturbed by an appellate court "unless it is so clearly

excessive as to constitute an abuse of discretion." Hollerbush, 444 A.2d at 1240.

Based on the applicable sentencing guidelines, and defendant's own admission in the Motion

for Reconsideration, this Court's sentence of six to twelve years in the instant matter was well

within the guidelines' and accordingly, not an abuse of discretion. A separate sentence of



2
  The instant conviction constituted a direct violation of defendant's probation and parole following a conviction
from an unrelated offense.
3
  For defendant's 18 Pa.C.S. § 6105 §§Al conviction, given the OGS often and his PRS of five, the guidelines
called for a minimum between 5 to 6 years (with a twelve month variance); for defendant's 18 Pa.C.S. § 6106
§§Al conviction, given the OGS of nine and his PRS of five, the guidelines called for a minimum between 4 to 5
years (with a twelve month variance); and, for defendant's 18 Pa.C.S. § 6108 conviction, given the OGS of five
and his PRS offive, the guidelines called for a minimum between I to 1.5 years (with a three month variance).
                                                         8
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three years of incarceration issued by a separate court for.an unrelated conviction for a

separate crime does not constitute a mitigating sentencing factor in the instant matter.

Accordingly, this Court did not err.




                                             V.       CONCLUSION

    For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.




                                                              BY THE COURT:



April 2, 2015




and his PRS of five, the guidelines called for a minimum between I to 1.5 years (with a three month variance).
Defendant was facing a legal sentencing range of up to 13.S to 27 years (without any aggravating factors)
under the guidelines for the instant convictions.
                                                       9
