J-A13028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WARREN GREENLEAF,

                            Appellant               No. 1636 WDA 2013


      Appeal from the Judgment of Sentence Entered September 11, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007051-2012


BEFORE: PANELLA, SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 18, 2015

        Appellant, Warren Greenleaf, appeals from the judgment of sentence

entered following his convictions of violations of the Pennsylvania Uniform

Firearms Act1 and defiant trespass. We affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

              On May 23, 2012 Zone 5, Pittsburgh Police Lieutenant,
        Reyne Kacsuta, was patrolling in the Garfield section of the
        [C]ity of Pittsburgh Allegheny County PA. As she drove past
        5402 Broad St., she saw a woman and three men on the front
        porch of an apartment building. The police had received an
        anonymous citizen’s complaint the day before of people
        trespassing on that property, gambling, and smoking marijuana.
        Lt. Kacsuta decided to stop and investigate after observing a
        police car drove [sic] past without stopping. As she exited the
____________________________________________


1
    18 Pa.C.S. § 6101, et seq.
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     police car and approached the front of the apartment building
     the people on the porch jumped up and one said, “Okay we’re
     going”. Lt. Kacsuta testified that the actions of the people and
     their remark, “we’re going” gave her reasonable suspicion that
     the people were trespassing.

            When the Lieutenant asked the people to remain where
     they were, one person, later identified as Anthony Amato began
     talking and screaming.       [Appellant] began to bang on the
     apartment’s locked front door yelling for someone to let him
     inside the building, and a third individual started to run away.
     Fearing for her safety and because her backup had just begun to
     arrive, Lt. Kacsuta handcuffed [Appellant] and the remaining
     individuals until she finished her investigation. However, once
     she determined that [Appellant] and other individuals had no
     outstanding warrants, and would only be charged with a
     summary trespass, Lt. Kacsuta began to uncuff the detainees.
     [Appellant] had difficulty standing up and stated he had been
     shot.   When Lt. Kacsuta and Officer McGee went to assist
     [Appellant], they saw a gun, in plain view, protruding from his
     pants pocket. [Appellant] was placed under arrest and charged
     with Violation of the Uniform Firearms Act, Person Not to
     Possess, use etc. a Firearm[;] Violation of the Uniform Firearms
     Act, Carrying a Firearm Without a License[;] and Defiant
     Trespass.

           [Appellant’s] firearm was a .38 caliber Colt Special
     revolver, tested and found to be in good working condition[.]
     Furthermore, [Appellant] did not have a license to carry the gun,
     nor could he obtain a license because of prior convictions. All
     the testimony from the Suppression hearing was incorporated in
     [Appellant’s] non-jury trial.

          [Appellant] was found guilty on all three counts and
     sentenced on September 11, 2013 to 4 to 8 years.

            [Appellant] filed a timely appeal[.]

Trial Court Opinion, 10/14/14, at 2-3 (internal citations and footnotes

omitted).   Both Appellant and the trial court complied with Pa.R.A.P.

1925(b).


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      Appellant presents the following issue for our review:

      Did [the] trial court err in denying [Appellant’s] motion to
      suppress where police, acting on an anonymous tip, seized
      [Appellant] without the requisite reasonable suspicion to believe
      criminal activity was afoot?

Appellant’s Brief at 4.

      Appellant argues that Lieutenant Kacsuta violated his constitutional

rights to be free from unreasonable searches and seizures when she stopped

him without the requisite reasonable suspicion to believe he was engaged in

criminal activity.   Appellant’s Brief at 11.   Appellant contends that on the

evening of the incident at issue, Lieutenant Kacsuta did not know whether

the individuals encountered on the porch were the same individuals who

were there the day before, when the anonymous complaint was made. Id.

at 16. Thus, Appellant asserts, the day-old anonymous tip, in conjunction

with the officer’s observation that Appellant walked away from the porch

when the officer approached, was insufficient to establish reasonable

suspicion of criminal activity. Id. at 11. Because the officers recovered a

firearm from Appellant’s person pursuant to this alleged unlawful seizure,

Appellant maintains that the firearm should have been suppressed. Id. at

19.

      The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. An appellate court

may consider only the Commonwealth’s evidence and so much of the

evidence for the defense as remains uncontradicted when read in the

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context of the record as a whole.     Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d

75 (Pa. 2004)). Where the record supports the factual findings of the trial

court, the appellate court is bound by those facts and may reverse only if

the legal conclusions drawn therefrom are in error. Id. However, it is also

well settled that an appellate court is not bound by the suppression court’s

conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455

(Pa. 2003)).

            With respect to factual findings, we are mindful that it is
      the sole province of the suppression court to weigh the credibility
      of the witnesses. Further, the suppression court judge is entitled
      to believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this [C]ourt.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted).   In addition, we are aware that questions of the

admission and exclusion of evidence are within the sound discretion of the

trial court and will not be reversed on appeal absent an abuse of discretion.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

      “‘Interaction’ between citizens and police officers, under search and

seizure law, is varied and requires different levels of justification depending

upon the nature of the interaction and whether or not the citizen is

detained.”     Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.




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2000). The three levels of interaction are: mere encounter, investigative

detention, and custodial detention. Id.

           A mere encounter can be any formal or informal
     interaction between an officer and a citizen, but will normally be
     an inquiry by the officer of a citizen. The hallmark of this
     interaction is that it carries no official compulsion to stop or
     respond.

           In contrast, an investigative detention, by implication,
     carries an official compulsion to stop and respond, but the
     detention is temporary, unless it results in the formation of
     probable cause for arrest, and does not possess the coercive
     conditions consistent with a formal arrest. Since this interaction
     has elements of official compulsion it requires reasonable
     suspicion of unlawful activity. In further contrast, a custodial
     detention occurs when the nature, duration and conditions of an
     investigative detention become so coercive as to be, practically
     speaking, the functional equivalent of an arrest.

Id. (internal citations and quotation marks omitted).

     Reasonable suspicion exists only where the officer is able to
     articulate specific observations which, in conjunction with
     reasonable inferences derived from those observations, led him
     reasonably to conclude, in light of his experience, that criminal
     activity was afoot and that the person he stopped was involved
     in that activity. Therefore, this Court must make an objective
     inquiry, namely, whether the facts available to the officer at the
     moment of the [intrusion] warrant a man of reasonable caution
     in the belief that the action taken was appropriate.

Commonwealth v. Plante, 914 A.2d 916, 922 (Pa. Super. 2006) (internal

citations and quotations omitted).

     “To 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.”     Commonwealth v.

Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002).

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       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.

Id. at 1201-1202 (internal citations and quotations omitted).

       Lieutenant   Kacsuta   provided    the   following    relevant    testimony.

Lieutenant Kacsuta was patrolling the area of Broad Street, in the Garfield

area of the city on May 23, 2012.        N.T., 5/16/13, at 6, 11.       On May 22,

2012, the night before the incident at issue, the Zone 5 police station had

received an anonymous complaint regarding individuals at 5402 Broad

Street, who were trespassing, smoking marijuana, and shooting dice. Id. at

5-6.   As a result, during her patrol on May 23, 2012, Lieutenant Kacsuta

drove by 5402 Broad Street to observe the area.             Id. at 6.    Lieutenant

Kacsuta saw one woman and three or four men on the porch to the

apartment building at 5402 Broad Street. Id. She stated that as soon as

she pulled up in a marked police car and started to get out, the individuals

on the porch stood up and said “okay, we’re going.” Id. Lieutenant Kacsuta

testified that response indicated to her that they were in fact trespassing.

Id. Lieutenant Kacsuta described the subsequent developments as follows:

       [Lieutenant Kacsuta]: [Appellant] reached towards the door
       knob [of the apartment building door] which was locked, and he
       started yelling let me in, let me in, let me in. A woman came
       out of the second or third floor window and she started yelling

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     and I said everybody just sit down.    I wanted everybody [to]
     just sit down on the porch.

            At that point there was one other individual who I later
     identified as Anthony Amato, he was a little to the side of the
     porch, he was kind of standing in the yard. And he just started
     talking and screaming, which was a diversion – I believe was a
     diversion, he was trying to divert my attention.

                                   ***

     And he just kept screaming. So, I’m telling everybody just sit
     down. And one of the men ran. He ran like off the porch
     towards me and then he turned to my left. I already had my
     taser out. I deployed my taser. He screamed, he fell on the
     ground. So now I have this guy who is diverting me, I have
     Anthony Amato who is diverting me, I have a woman and two
     other men on the porch.

                                    ***

     [Counsel]: At this time, lieutenant, do you have any backup or
     are you by yourself?

     [Lieutenant Kacsuta]:   I was by myself.

     [Counsel]: So with all this activity going on what do you do
     next?

     [Lieutenant Kacsuta]: I’m directing everybody to sit down
     which [Appellant], the other individual and the woman sat on the
     porch. Amato, I had him lay down on the ground, he eventually
     complied. The other guy got away, he ran. He – the taser hit
     him, he fell to the ground, he got back up and he ran.

     [Counsel]: Okay.

     [Lieutenant Kacsuta]: At this point my sense was that I was in
     sort of an ambush type situation with this individual who ran
     because now I don’t know where he went. So I have everybody
     sitting on the porch, and I had already radioed for backup when
     I was getting out of the car so other officers were coming.

                                 ***

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     When the first officer arrived on the scene, it was Officer Greg
     McGee, we just started handcuffing the people who were on the
     porch and I handcuffed [Appellant].

     [Counsel]: At that time what was the basis for your handcuffing
     [Appellant] along with the other individuals?

     [Lieutenant Kacsuta]: He was – my initial investigation was of
     the defiant trespass and because everybody got up to leave as
     soon as they saw a police car, I said okay, these individuals do
     not belong here so I’m going to investigate this as defiant
     trespass.

            When [Appellant] tried to get into the building and he
     could not access it, that led me further to believe that he was in
     fact trespassing on this porch because he couldn’t get in, and he
     was yelling to somebody to let him into the building. That’s the
     crime that I was investigating.

           Once all of this chaos happens with the running and I know
     that I am – that the initial complaint is drug dealing, trespass,
     gambling and I know that this area, this area -- this is in
     Garfield, it is a very violent high crime area. There is a lot of
     shootings, there is a lot of drug dealing, so that’s kind of what I
     figured I had there. And my initial charge for [Appellant] was
     that he was trespassing.

     [Counsel]: When all that activity was going on is it safe to say
     that you were in fear of your safety?

     [Lieutenant Kacsuta]:   Yes, I was.

     [Counsel]: So, once you place [Appellant] in handcuffs along
     with I believe two other individuals what happened next?

     [Lieutenant Kacsuta]: Other officers had arrived.          We got
     everybody handcuffed, got everybody’s name.               We ran
     everybody for warrants to see if there were warrants for
     anybody. I realized I had not patted anybody down because I
     just wanted to get them handcuffed so we could all be safe. So
     at that point I was about to let [Appellant] go, went to stand him
     up, Officer McGee and I went to get him to stand up –


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     [Counsel]: Was he in handcuffs?

     [Lieutenant Kacsuta]: He was handcuffed. We were going to
     stand him up, and I’m not sure at what point we were going to
     pat him down, if we were patting him down and letting him go,
     but the situation was calm, everything was in my mind at this
     point calm and somewhat resolved.

           As we went to get [Appellant] up, told him to stand, he
     leaned over to his right. He said I can’t stand up, I can’t stand
     up, I got shot. Well, I didn’t know when he got shot. I didn’t
     know if he had just gotten shot. He said I got shot, I got shot, I
     can’t stand up. And he very oddly leaned over to his right side.
     And so Officer McGee and I went to pick him up and he still kept
     leaning to his right, leaning to his right. As I stood him up I saw
     the handle of a gun sticking out of his pants pocket.

Id. at 6-12.

     The record supports the conclusion that Lieutenant Kacsuta’s initial

interaction with the individuals on the porch began as a mere encounter.

She approached the individuals merely for purposes of making inquiry. The

reactions of the individuals in response to her approach resulted in her

developing reasonable suspicion that they were involved in criminal activity.

Specifically, the individuals started to leave as she approached, indicating

that “we’re leaving”.   Appellant was banging on the front door to the

apartment building seeking access.     One of the men started yelling and

screaming and another charged off of the porch towards Lieutenant Kacsuta.

Additionally, the individuals were in the same location that was the subject

of a complaint the night before involving individuals trespassing, smoking

marijuana, and gambling. This address was located in a high crime area of

the city, where drug dealing and shootings are common. Thus, the totality

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of the circumstances reasonably led Lieutenant Kacsuta to believe that the

individuals, including Appellant, were involved in criminal activity. Plante,

914 A.2d at 922.        Accordingly, she was justified in detaining these

individuals for purposes of investigating potential criminal activity.

      We further note that, despite Appellant’s claim, Lieutenant Kacsuta’s

reasonable suspicion that the individuals were involved in criminal activity

was not based solely on the anonymous tip received by officers the night

before.   The previous complaint regarding criminal activity at this address

was simply one factor in the totality of circumstances supporting her

conclusion. Furthermore, it is of no relevance whether Appellant was one of

the individuals trespassing at that address the night before. As noted, the

totality of the circumstances reasonably led Lieutenant Kacsuta to believe

that the individuals, including Appellant, were involved in criminal activity.

Plante, 914 A.2d at 922. As such, reasonable suspicion justified her seizure

of these individuals for purposes of investigating criminal activity.     The

seizure of Appellant and the other individuals was lawful.

      Having determined that the seizure of Appellant’s person was lawful,

we turn to consider the legality of the seizure of the gun on Appellant’s

person.   The gun sticking out of Appellant’s pants pocket came into plain

sight while the officers were attempting to stand Appellant upright after he

stated that he could not stand because he had been shot.          We apply the




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following test to determine whether a search falls within the plain view

exception:

      For the exception to be present, initially, the officer must not
      have violated the Fourth Amendment in arriving at the place
      from which the evidence could be plainly viewed. Moreover, two
      additional conditions must be satisfied to justify the warrantless
      seizure. First, the incriminating character of the item must be
      immediately apparent. Also, the officer must have a lawful right
      of access to the object itself.

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (quotations

and citations omitted).

      Here, the officers viewed the gun from a lawful vantage point.         As

stated, the officers had lawfully seized Appellant. The gun became apparent

as the officers were helping Appellant to stand after he asserted that he

could not do so because he had been shot. Additionally, the incriminating

nature of the object was immediately apparent to Lieutenant Kacsuta, and

she had a lawful right to access the firearm. Thus, a warrantless seizure of

the gun was justified.

      Accordingly, we conclude the suppression court did not err in finding

Lieutenant Kacsuta had the necessary reasonable suspicion to detain

Appellant.   Additionally, because the gun was viewed in plain sight during

the lawful detention, the officers properly seized it. Thus, the trial court did

not err in denying Appellant’s request to suppress this evidence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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