J-A28020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ALPHONSO PALMER

                        Appellant                   No. 3575 EDA 2014


         Appeal from the Judgment of Sentence October 23, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003493-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                      FILED DECEMBER 14, 2015

     Appellant, Alphonso Palmer, appeals from the judgment of sentence

entered October 23, 2014, by the Honorable Giovanni O. Campbell, Court of

Common Pleas of Philadelphia County. We affirm.

     The trial court summarized the facts of this case as follows.

            On Ma[rch] 8, 2014 at 5:20 p.m.[, Philadelphia Police
     Officer Daniel Loesch] was on routine patrol with his partner,
     Officer Donahue[,] in the area of 2500 North Douglas Street. On
     that date, he had been an officer for about 5 ½ years and had
     approximately three years combined as an officer in the 22nd
     District. Also by that date, Police Officer Loesch had made over
     10 arrests for [narcotics] and at least 15 arrests for violent
     offenses in that immediate area. Approximately three shootings
     occurred in that immediate area at very close times [to] the
     [Appellant’s] arrest, two of which occurred one block from where
     the [Appellant] was arrested and another occurring another six
     blocks away from the site of the [Appellant’s] arrest. Police
     Officer Loesch testified that a radio call was transmitted for a
     black male with a black hat, black jacket, and several persons in
     a silver Pontiac involved in a shooting. [A]pproximately two
     hours later, Police Officer Loesch observed the [Appellant] with
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       several other males near a sliver Pontiac.           He observed
       specifically the [Appellant] being on the vehicle from half a block
       away. Police [Officer] Loesch admits that the flash did not
       exactly match the [Appellant]. Police Officer Loesch and his
       partner drove to the streets without activating their sirens. As
       the vehicle arrived, the [Appellant] immediately began to walk,
       then jog, then run in full flight. As the [Appellant] ran, Police
       Officer Loesch saw [him] reaching to his [waistband] several
       times. The [Appellant] was ordered by the officers at least two
       times to remove his hands from his waistband but he refused to
       do so.      After the [Appellant] was apprehended, he was
       immediately searched and a handgun was recovered from his
       person.

Trial Court Opinion, 3/23/15 at 2 (unnumbered).

       Appellant was subsequently arrested and charged with carrying a

firearm without a license and carrying a firearm in public in Philadelphia.1

Prior to trial, Appellant filed a “Motion for Suppression,” which the

suppression court denied following a hearing. The trial court subsequently

convicted Appellant of both charges and sentenced him to 30 to 60 months’

incarceration, followed by five years’ probation. This timely appeal followed.

       Initially, we note that Appellant has not included in his brief a

statement     of   questions     involved      in   violation   of   Pa.R.A.P.   2116(a).

Ordinarily, this omission would result in waiver of the claims Appellant has

raised on appeal.      See Pa.R.A.P. 2116(a) (“No question will be considered

unless it is stated in the statement of questions involved or is fairly

suggested thereby.”).          However, because it is readily apparent from
____________________________________________


1
  18 Pa.C.S.A. §§ 6106 and 6108, respectively. Appellant was additionally
charged with receiving stolen property, 18 Pa.C.S.A. § 3925(a), but the
Commonwealth later nolle prossed that charge prior to trial.



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Appellant’s brief that he is challenging the denial of his suppression motion

and this issue was properly preserved in Appellant’s Pa.R.A.P. 1925(b)

statement, we find no impediment to our review. We therefore decline to

find waiver in this instance, and proceed to address the merits of Appellant’s

claim.

      We review the denial of a motion to suppress physical evidence as

follows.

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct.

           [W]e may consider only the evidence of the prosecution
           and so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

           Further, [i]t is within the suppression court’s sole province
           as factfinder to pass on the credibility of witnesses and the
           weight to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted).

      The suppression court’s factual findings are supported by the record.

We therefore proceed to examine the propriety of the suppression court’s

legal conclusions.

      Appellant claims that the police officers did not have reasonable

suspicion of criminal activity to justify the police chase and that the firearm

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obtained from his person was therefore improperly seized.            Specifically,

Appellant contends that his “slow jogging” from the police presence was not

the type of conduct that is intended to be considered flight and that there

was insufficient testimony for the suppression court to have concluded

Appellant was in a high crime area.         Appellant’s Brief at 16, 22.        We

disagree.

      The Fourth Amendment of the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects,    against   unreasonable   searches   and   seizures,   shall   not   be

violated....” U.S. Const. amend IV. Similarly, the Pennsylvania Constitution

assures citizens of our Commonwealth that “[t]he people shall be secure in

their persons, houses, papers and possessions from unreasonable searches

and seizures....” Pa. Const. art. I, § 8. Further, “[t]he reasonableness of a

governmental intrusion varies with the degree of privacy legitimately

expected and the nature of the governmental intrusion.” Commonwealth

v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted).

Interactions between law enforcement and citizens fall into one of the

following three categories.

           The first of these is a “mere encounter” (or request for
           information) which need not be supported by any level of
           suspicion, but carries no official compulsion to stop or
           respond. The second, an “investigative detention” must be
           supported by a reasonable suspicion; it subjects a suspect
           to a stop and a period of detention, but does not involve
           such coercive conditions as to constitute the functional


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         equivalent of an arrest. Finally, an arrest or “custodial
         detention” must be supported by probable cause.

Id., at 845 (citation omitted).

      When assessing whether an interaction escalates from a mere

encounter to an investigative detention, we employ the following standard.

         To guide the crucial inquiry as to whether or not a seizure
         has been effected, the United States Supreme Court has
         devised an objective test entailing a determination of
         whether, in view of all surrounding circumstances, a
         reasonable person would have believed that he was free to
         leave. In evaluating the circumstances, the focus is
         directed toward whether, by means of physical force or
         show of authority, the citizen-subject's movement has in
         some way been restrained. In making this determination,
         courts must apply the totality-of-the-circumstances
         approach, with no single factor dictating the ultimate
         conclusion as to whether a seizure has occurred.

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012) (citation

omitted), appeal denied, 65 A.3d 413 (Pa. 2013). Moreover, when this

Court evaluates whether an investigative detention is constitutional, the

following principles guide our decision.

         A police officer may detain an individual in order to
         conduct an investigation if that officer reasonably suspects
         that the individual is engaging in criminal conduct. This
         standard, less stringent than probable cause, is commonly
         known as reasonable suspicion. In order to determine
         whether the police officer had reasonable suspicion, the
         totality of the circumstances must be considered. In
         making this determination, we must give due weight to the
         specific reasonable inferences the police officer is entitled
         to draw from the facts in light of his experience. Also, the
         totality of the circumstances test does not limit our inquiry
         to an examination of only those facts that clearly indicate
         criminal conduct. Rather, even a combination of innocent



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           facts, when taken together, may             warrant    further
           investigation by the police officer.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (citing

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en

banc)).

      At the suppression hearing, Officer Loesch testified that he had made

more than ten narcotics-related arrests and more than 15 arrests involving

violence in the general vicinity of Appellant’s arrest in the prior 3½ years.

See N.T., Suppression Hearing, 7/31/14 at 9.             Officer Loesch further

testified that there were several shootings in that area in the two weeks

preceding Appellant’s arrest. See id., at 9-10. Although Officer Loesch did

not specifically describe the area using the term “high crime area,” it is clear

that, in light of Officer Loesch’s perspective and experience, the area was,

indeed, a high crime area.

      While on patrol in that high crime area, Officer Loesch received a radio

flash that a shooting had occurred in the vicinity involving a black male and

a silver Pontiac.   See id., at 11.    Officer Loesch then observed several

males, including the Appellant, leaning on a silver Pontiac. See id., at 12.

As the officers approached Appellant, the interaction was a mere encounter

and   no     reasonable   suspicion   to    approach    was      needed.    See

Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007) (“A mere

encounter between police and a citizen need not be supported by any level

of suspicion, and carr[ies] no official compulsion on the part of the citizen to


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stop or to respond.” (internal quotation marks and citation omitted; brackets

in original)).

      Following     this   initial    encounter,   Appellant   and   his   companions

“immediately did a slow jogging into a run, which was from the east side of

the street to the west side of the street, at which time [Appellant] was

grabbing his waistband the whole time.”               Id. (emphasis added).      This

testimony flatly contradicts Appellant’s argument that he did not run from

the police.      Officer Loesch’s partner then gave chase and apprehended

Appellant. See id., at 13. Once apprehended, the officer conducted a frisk

and recovered a firearm from Appellant’s waistband. See id.

      Under the totality of the circumstances, giving due weight to the

reasonable inferences drawn by Officers Loesch and Donahue in light of their

experience, we find that             Appellant’s unprovoked flight at the officers’

approach, coupled with Officer Loesch’s testimony that the area was a high

crime area, sufficiently established the reasonable suspicion necessary to

warrant a Terry stop under the Fourth Amendment.                 See, e.g., In the

Interest of D.M., 781 A.2d 1161, 1164 (Pa. 2001) (“[U]nprovoked flight in

a high crime area is sufficient to create a reasonable suspicion to justify a

Terry stop under the Fourth Amendment.”); Commonwealth v. Tucker,

883 A.2d 625, 630-631 (Pa. Super. 2005) (“[T]he fact that Tucker was in a

high crime area and fled when approached by the police provided the officers

with reasonable suspicion to stop Tucker and conduct a Terry stop.”).


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Accordingly, we reject Appellant’s claim that the trial court erred in failing to

suppress the firearm recovered from his person.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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