J-A02032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA
                             Appellee

                        v.

    BENJAMIN JENKINS,

                             Appellant                       No. 262 WDA 2017


       Appeal from the Judgment of Sentence entered January 12, 2017,
              in the Court of Common Pleas of Allegheny County,
            Criminal Division, at No(s): CP-02-CR-0008390-2016.


BEFORE: BOWES, OLSON, and KUNSELMAN, JJ.

MEMORANDUM BY KUNSELMAN, J.:                                 FILED MARCH 02, 2018

          Appellant, Benjamin Jenkins, appeals from the judgment of sentence

imposed after he was convicted following a bench trial of two firearm

violations,   possession     of   a   small    amount   of    marijuana,   and   public

drunkenness.1 Appellant claims the police officer had no reasonable suspicion

to stop him and the search was illegal.           Because the record supports the

findings of the trial court, we affirm.

          The trial court summarized the pertinent facts as follows:

          Around 7:30 in the morning on a school day, a Sto-Rox
          police officer is called to the high school. The call was that
          a former student showed up and he was intoxicated. Officer
          Nicholas Hryadil responded to the call. He gets to the main
____________________________________________


1See 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), 35 P.S. § 780-113(a)(31),
and 18 Pa.C.S.A. § 5505, respectively.
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         office of the high school and [sees Appellant] talking with a
         former teacher.            [Appellant] appeared drowsy and
         intoxicated, yet jovial. He hugged the former teacher 3
         times while [Officer] Hryadil was there. School personnel
         did not want him there any longer. [Officer] Hryadil asked
         him to leave. It took some more talking. Eventually,
         [Appellant] “walked out the door.” [Appellant] was just a
         few feet away from the door and [Officer] Hryadil himself
         when [the officer] noticed “a bulge sticking in [Appellant’s]
         waistband and it looked like the end of a firearm.” Based
         upon his training and 16 years of police experience, [Officer]
         Hryadil believed it to be a gun. He told [Appellant] to put
         his hands on his head and [the officer] “reached down and
         felt it.” “[I]t felt like a firearm. “[L]ike the handle of a snub
         nose revolver.” “It’s a short handle kind of round a little bit
         on the top part of it that was facing downward.” [Officer]
         Hryadil moved [Appellant’s] shirt and removed the item
         from [Appellant’s] waistband.             [Appellant] was then
         arrested and later a small amount of marijuana was found
         on him.

Trial Court Opinion, 4/10/17, at 1-2.

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

court held a hearing on the motion, and it denied the motion at the conclusion

of the hearing. On January 12, 2017, Appellant waived his right to a jury trial

and, following a stipulated non-jury trial wherein the suppression testimony

was incorporated, the trial court found Appellant guilty of all of the charges.

Appellant waived the preparation of a presentence report and proceeded

immediately to sentencing. The trial court imposed an aggregate sentence of

11 ½ to 23 months of imprisonment and a concurrent 4 year probationary

term. This timely appeal follows. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:


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         I.      Did the trial court err in denying [Appellant’s] motion
                 to suppress where the police lacked reasonable
                 suspicion to believe [Appellant] was engaged in
                 criminal activity and was armed and dangerous at the
                 time he was seized and simultaneously searched?

Appellant’s Brief at 5.

      “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. Simonson, 148 A.3d 792, 796 (Pa. Super. 2016)

(citation omitted). When, as here, a motion to suppress is denied, we apply

the following:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is whether the factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. When
         reviewing the ruling of a suppression court, we must
         consider only the evidence of the prosecution and so much
         of the evidence of the defense as remains uncontradicted
         when read in the context of the record. . . . [When] the
         record supports the findings of the suppression court, we
         are bound by those facts and may reverse only if the legal
         conclusions drawn therefrom are in error.

Id.

      “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.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa.

Super. 2016) (citations omitted).       Finally, when considering a motion to

suppress evidence, it is within the suppression court’s sole province as


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factfinder to pass on the credibility of the witnesses and the weight to be given

their testimony. Commonwealth v. Simonson, 148 A.3d at 796 (citation

omitted).

      This Court has summarized:

             There 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 period of
         detention, but it does not have the coercive conditions that
         would constitute an arrest. The Court determines whether
         reasonable suspicion exists by examining the totality of the
         circumstances. An arrest, or “custodial detention,” must be
         supported by probable cause.

In the Interest of J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016)(citations

omitted).

      Here, the parties and the trial court agree that Officer Hyradil’s actions

toward Appellant constituted an investigatory detention. Such an encounter

is permitted in Pennsylvania whenever:

             [A] law enforcement officer has a particularized and
         objective basis for suspecting the particular person stopped
         of criminal activity.    It is axiomatic that to establish
         reasonable suspicion, an officer must be able to articulate
         more than an inchoate and unparticularized hunch. . . . [A]s
         the Supreme Court has long recognized, Terry v. Ohio, 392
         U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is an
         exception to the textual standard of probable cause. A
         suppression court is required to take into account the
         totality of the circumstances—the whole picture. When
         conducting a Terry analysis, it is incumbent on the
         suppression court to inquire, based on all of the
         circumstances known to the officer ex ante, whether an


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          objective basis for the seizure was present. In addition, an
          officer may conduct a limited search, i.e., a pat-down of the
          person stopped, if the officer possesses reasonable
          suspicion that the person stopped may be armed and
          dangerous.

Commonwealth v. Morrison, 166 A.3d 357, 364 (Pa. Super. 2017) (citation

omitted). Stated differently, “[t]he fundamental inquiry is an objective one,

namely, whether the facts available to the officer at the moment of intrusion

warrant a man of reasonable caution in the belief that the action taken was

appropriate.” Id.

        Here, the trial court concluded that Officer Hryadil had adequate

reasonable suspicion to support Appellant’s investigative detention in this

case:

              Neither part of the Terry analysis detains this Court very
          long. Officer Hryadil had sufficient suspicion that criminal
          activity may be afoot. He has interaction with a former
          student, over the age of 21, visibly intoxicated, at a public
          high school within his patrol area. During the escort process
          of [Appellant] off the property, [Officer] Hryadil noticed, as
          filtered through his years of experience, what he believed to
          be a gun in [Appellant’s] waistband. Considering school is
          just starting for the day, [Officer] Hryadil freezes the
          situation by instructing [Appellant] to put his hands on his
          head and [the officer] touches that area. His tactile sense
          then confirms for him that it is, indeed, a gun. This then
          allowed a protective, limited search to take place. In sum,
          there is simply nothing unreasonable about the officer’s
          interaction with [Appellant]. Because the touchstone of
          reasonableness was demonstrated by the government’s
          proof, this court denied the request to suppress the gun.




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Trial Court Opinion, 4/10/17, at 3.2 We agree.

       Initially, Appellant argues that the reasons given by Officer Hryadil were

“the very definition of a ‘hunch’ and was not supported by specific and

articulable facts to believe that [he] was engaged in criminal activity and was

armed and dangerous.” Appellant’s Brief at 13. He bases this assertion on

the fact that the officer wrote in the affidavit of probable cause that it “could

possibly been a gun” and, on a couple of occasions, testified at the suppression

hearing that it “could possibly have been” a gun. See N.T., 11/1/16, at 10-

19. This argument ignores not only the entirety of the officer’s suppression

hearing testimony, but also the totality of the circumstances presented.

       “It is well settled that to justify their decision to stop and detain [an]

appellant, the police need not establish their suspicions to a level of certainty,

a preponderance, or even a fair probability.” Commonwealth v. Epps, 608

A.2d 1095, 1096 (Pa. Super. 1992). In this case, the trial court specifically

found that Officer Hryadil noticed “a bulge sticking in [Appellant’s] waistband

and it looked like the end of a firearm.” Trial Court Opinion, 4/1/17, at 2. On

appeal from the grant of a suppression order, the Superior Court is not at

liberty to reject a finding of fact that is based on credibility. Commonwealth

v. Parker, 152 A.3d 309, 315 (Pa. Super. 2016) (citation omitted). Thus,

____________________________________________


2  The trial court further found that upon discovering the weapon, “the
circumstances quickly materialized into probable cause to arrest” Appellant
and the marijuana found on his person was properly seized as incident to that
arrest.


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Appellant’s assertion that the officer saw no more than “an unknown and non-

descript bulge protruding from clothing,” Appellant’s Brief at 15, is

unsupported by the record. Further, although Officer Hryadil testified on one

occasion that he was not one hundred percent sure the concealed object was

a gun, our case law does not require such certainty. Epps, supra.

      Moreover, the cases discussed by Appellant are inapposite.             In

Commonwealth v. Martinez, 588 A.2d 513 (Pa. Super. 1991) a group of

people standing on a street corner in a high crime area dispersed once they

saw police approach.     The police decided to stop Martinez, one of these

individuals, because she was holding something that appeared as a bulge in

her jacket.    We affirmed the suppression of contraband found in her

possession because there existed “no basis to reasonably believe she was

engaged in any unusual or suspicious conduct.” Martinez, 588 A.2d at 516-

17. Here, the circumstances are much different—an intoxicated individual on

school property who possessed what the officer reasonably believed was a

handgun in his waistband.

      Appellant also cites Commonwealth v Stevenson, 894 A.2d 759 (Pa.

Super. 2006) to suggest that Officer Hryadil was required to provide more

specific testimony regarding his training in the ability to recognize firearms.

It is well settled that such specifics are not required when determining whether

reasonable suspicion exists. See Commonwealth v. Carter, 105 A.3d 765,

774 (Pa. Super. 2014) (en banc) (explaining that while specialized training

received by a police officer can be relevant to a reasonable suspicion analysis,

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it is not necessary for the officer to have such training in order for his

observations to help establish a reasonable suspicion). Here, the trial court

was satisfied that Officer Hryadil’s almost sixteen years of experience as a

police officer, as well as a gun owner, was sufficient for him to reasonably

believe he saw the butt end of a handgun in Appellant’s waistband.

        Finally, we do not believe the trial court imposed a lesser standard of

suspicion because the stop occurred on school property as opposed to a stop

on a public street. Rather, the trial court properly considered that Appellant

was on school property as part of the totality of the circumstances presented

to the officer. Additionally, although Appellant’s observed behavior might not

have been “violent and disruptive,” his public drunkenness, a crime in and of

itself,3 while armed with a gun, on school property when classes were about

to begin, was inherently dangerous.

        In sum, because our review of the record supports the trial court’s

conclusion that Officer Hryadil possessed a reasonable suspicion that

Appellant was armed, we affirm its decision denying Appellant’s suppression

motion.

        Judgment of sentence affirmed.




____________________________________________


3   18 Pa.C.S.A. § 912.


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J-A02032-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/02/2018




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