J-S61039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KARL WILLIAMSON,

                            Appellant                No. 2687 EDA 2015


             Appeal from the Judgment of Sentence August 6, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0001215-2014


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 07, 2017

        Appellant, Karl Williamson, appeals from the judgment of sentence

imposed after a stipulated bench trial in which the trial court found him

guilty of possession with intent to deliver a controlled substance, knowing or

intentional possession of a controlled substance, possession of drug

paraphernalia, and fleeing or attempting to elude the police. Specifically, he

challenges the denial of his motion to suppress. We affirm.

        The suppression court summarized the pertinent facts of the case as

follows:

              At approximately 2:00 P.M. on November 21, 2013,
        Philadelphia Police Officer Michael Berkery was conducting a
        routine patrol in the area of the 4700 block of Longshore Avenue
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     in the City and County of Philadelphia. Officer Berkery observed
     [Appellant] driving a black Lincoln Navigator past him. Officer
     Berkery observed that the vehicle had heavy tint on all windows
     except the windshield. Specifically, Officer Berkery noted that
     the tint was dark enough that he could only see a figure inside of
     the vehicle, but could not “make out” [Appellant]. [Appellant]
     had pulled the Navigator into a parking spot. Officer Berkery’s
     partner exited the vehicle and approached the driver’s side of
     the Navigator. The police vehicle’s lights and sirens were not
     activated. Officer Berkery’s partner knocked on the window and
     asked [Appellant] twice to roll down his window.         Instead,
     [Appellant] pulled out of the parking space at a high rate of
     speed. The officers then pursued [Appellant] through several
     turns to the 6900 block of Tulip Street, a total distance of
     approximately three blocks. . . . Officer Berkery described the
     area as a high narcotics area of the city. In making a
     credibility determination, [the suppression] court found Officer
     Berkery credible in all respects.

(Supplemental Opinion, 11/17/16, at 1-2) (record citations omitted)

(emphases added).

     The factual history of the case is continued in the trial court’s opinion:

     After following [Appellant] with activated lights and sirens, the
     officers stopped [Appellant], who then proceeded to exit the
     vehicle. The officers pursued [Appellant] on foot. As [Appellant]
     was running, he threw a small black bag on the highway.
     [Appellant] continued fleeing by jumping fences and the sort.
     Officers retrieved the bag on the highway and took the keys out
     of [Appellant’s] vehicle. [Appellant] did not stop until he was
     tased by the officer and was commanded to stop and get on the
     ground. After that, he continued to run and was finally caught
     by officers and placed into custody. Inside the black bag was
     one clear sandwich bag with a large off-white chunky substance
     confirmed to be cocaine or heroin. There was also a small bag
     noted to have offwhite powder also alleged to be heroin.

            [On s]earch incident to arrest, the officer recovered a razor
     blade in [Appellant’s] pocket and a small clear bag with unused
     baggies. Recovered from the front seat of the vehicle was a
     scale and a couple thousand additional new and unused baggies.
     All of the narcotics were placed on a property receipt 3126678.

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       The paraphernalia was placed on 3126679. The total weight the
       [sic] of the cocaine was 6.296 grams and the total weight of the
       heroin was 0.118 grams.

(Trial Court Opinion, 11/08/16, at 2-3) (record citations omitted).

       The trial court found Appellant guilty of all charges, as previously

noted. (See id. at 3). On August 6, 2015, the court sentenced him to a

term of not less than nine nor more than twenty-three months of

incarceration followed by a four-year period of reporting probation.      This

timely appeal followed.1

       Appellant presents one question on appeal.

             Did not police [sic] lack reasonable suspicion that
       [A]ppellant committed a motor vehicle code violation or any
       other crime, and therefore did not the initial stop and
       subsequent pursuit of [A]ppellant violate his rights under the
       Fourth Amendment of the United States Constitution and Article
       1, Section 8 of the Pennsylvania Constitution?

(Appellant’s Brief, at 3).

       Our standard of review is well-established:

             [An appellate court’s] standard of review in addressing a
       challenge to the denial of a suppression motion is limited to
       determining whether the suppression court’s factual findings are
       supported by the record and whether the legal conclusions
       drawn from those facts are correct. Because the Commonwealth
       prevailed before the suppression court, we may consider only
       the evidence of the Commonwealth 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 suppression court’s
____________________________________________


1  Appellant filed a court-ordered statement of errors on December 29, 2015.
The trial court filed an opinion on November 8, 2016. The suppression court
filed an opinion on November 17, 2016. See Pa.R.A.P. 1925.



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     factual findings are supported by the record, [the appellate
     court] is bound by [those] findings and may reverse only if the
     court’s legal conclusions are erroneous. Where . . . the appeal of
     the determination of the suppression court turns on allegations
     of legal error, the suppression court’s legal conclusions are not
     binding on an appellate court, whose duty it is to determine if
     the suppression court properly applied the law to the facts.
     Thus, the conclusions of law of the courts below are subject to
     [ ] plenary review.

Commonwealth v. Mason, 130 A.3d 148, 151–52 (Pa. Super. 2015),

appeal denied, 138 A.3d 3 (Pa. 2016) (citations omitted).

           When reviewing an order denying suppression, this Court
     must review the record in the light most favorable to the
     Commonwealth, as verdict winner, and determine whether
     the trial court’s factual findings are supported by the record.
     Provided that there is support in the record for the court’s factual
     findings, this Court will not reverse the order denying
     suppression unless the legal conclusions drawn from those facts
     are in error.

Commonwealth v. Rickabaugh, 706 A.2d 826, 832–33 (Pa. Super. 1997),

appeal denied, 736 A.2d 603 (Pa. 1999) (citations omitted) (emphasis

added).

           It is well[-]settled that the purpose of both the Fourth
     Amendment of the United States Constitution and Article 1,
     Section 8 of the Pennsylvania Constitution is to protect citizens
     from unreasonable searches and seizures. In the seminal case
     of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889
     (1968), the United States Supreme Court indicated that police
     may stop and frisk a person where they had a reasonable
     suspicion that criminal activity is afoot. In order to determine
     whether the police had a reasonable suspicion, the
     totality of the circumstances—the whole picture—must be
     considered. United States v. Cortez, 449 U.S. 411, 417, 101
     S. Ct. 690, 66 L.Ed.2d 621 (1981). “Based upon that whole
     picture the detaining officers must have a particularized and
     objective basis for suspecting the particular person stopped of
     criminal activity.” Id. at 417–18, 101 S. Ct. 690. Pennsylvania

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     courts have consistently followed Terry in stop and frisk cases,
     including those in which the appellants allege protections
     pursuant to Article 1, Section 8 of the Pennsylvania Constitution.

In re D.M., 781 A.2d 1161, 1163 (Pa. 2001) (some citations omitted)

(emphasis added).

     There are three relevant cognizable categories of interactions
     between persons and police: a mere encounter, an investigative
     detention, and a custodial detention or arrest. Commonwealth
     v. Polo, 563 Pa. 218, 759 A.2d 372, 375 (2000). A mere
     encounter need not be supported by any level of suspicion, and
     does not require a person to stop or respond.              Id.  An
     “investigative detention,” or Terry stop, must be supported by
     reasonable suspicion; it subjects a person to a stop and a period
     of detention, but does not involve such coercive conditions as to
     constitute the functional equivalent of an arrest. Id. An arrest
     or custodial detention must be supported by probable cause. Id.
     “Pennsylvania courts have consistently followed Terry in stop
     and frisk cases, including those in which the appellants allege
     protections pursuant to Article I, [§] 8. . . .” In the Interest of
     D.M., [supra] at 1163 (citing Commonwealth v. Cook, 558
     Pa. 50, 735 A.2d 673, 677 (1999); Commonwealth v.
     Jackson, 548 Pa. 484, 698 A.2d 571, 573 (1997)); see also
     Commonwealth v. Wimbush, 561 Pa. 368, 750 A.2d 807, 810
     n. 2 (2000) (“Pennsylvania has consistently followed Fourth
     Amendment jurisprudence in stop and frisk cases.”) (citing
     Jackson, at 574; Commonwealth v. Melendez, 544 Pa. 323,
     676 A.2d 226, 230 (1996) (Terry stop constitutional under
     Article I, § 8)). Relying on that language from In the Interest
     of D.M., we noted an investigative detention under the Fourth
     Amendment        and   Article   I,   §     8    “is  coterminous.”
     Commonwealth v. Revere, 585 Pa. 262, 888 A.2d 694, 699 n.
     6 (2005). Thus, vehicle stops that are constitutional under
     Terry are constitutional under Article I, § 8.

Commonwealth v. Chase, 960 A.2d 108, 117 (Pa. 2008) (emphasis

added). Furthermore,

          Reasonable suspicion sufficient to stop a motorist
     must be viewed from the standpoint of an objectively
     reasonable police officer. In a Terry stop, the officer may

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     ask the detainee a moderate number of questions to determine
     his identity and to try to obtain information confirming or
     dispelling the officer’s suspicions. A finding of reasonable
     suspicion does not demand a meticulously accurate
     appraisal of the facts.        Indeed, even stops based on
     factual mistakes generally are constitutional if the
     mistake is objectively reasonable.

Id. at 120 (citations and quotation marks omitted) (emphases added).

     [O]fficers are not required to ignore the relevant characteristics
     of a location in determining whether the circumstances are
     sufficiently suspicious to warrant further investigation.
     Accordingly, we have previously noted the fact that the stop
     occurred in a “high crime area” among the relevant contextual
     considerations in a Terry analysis. Adams v. Williams, 407
     U.S. 143, 144, 147–148 [ ] (1972).

           In this case, moreover, it was not merely respondent’s
     presence in an area of heavy narcotics trafficking that aroused
     the officers’ suspicion, but his unprovoked flight upon noticing
     the police.     Our cases have also recognized that nervous,
     evasive behavior is a pertinent factor in determining reasonable
     suspicion.     Headlong flight—wherever it occurs—is the
     consummate act of evasion: It is not necessarily indicative of
     wrongdoing, but it is certainly suggestive of such. In reviewing
     the propriety of an officer’s conduct, courts do not have available
     empirical studies dealing with inferences drawn from suspicious
     behavior, and we cannot reasonably demand scientific certainty
     from judges or law enforcement officers where none exists.
     Thus, the determination of reasonable suspicion must be based
     on commonsense judgments and inferences about human
     behavior. See [ ] Cortez, [supra at] 418.

Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000) (some citations

omitted) (emphases added).

           In Pennsylvania, a police officer has authority to stop a
     vehicle when he or she has reasonable suspicion that a violation
     of the Motor Vehicle Code is occurring or has occurred. Our
     Supreme Court defines reasonable suspicion as:




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         a less stringent standard than probable cause necessary to
         effectuate a warrantless arrest, and depends on the
         information possessed by police and its degree of reliability
         in the totality of the circumstances. In order to justify the
         seizure, a police officer must be able to point to
         “specific and articulable facts” leading him to
         suspect criminal activity is afoot. In assessing the
         totality of the circumstances, courts must also afford due
         weight to the specific, reasonable inferences drawn from
         the facts in light of the officer's experience and
         acknowledge that innocent facts, when considered
         collectively, may permit the investigative detention. Thus,
         under the present version of Section 6308(b), in order to
         establish reasonable suspicion, an officer must be able to
         point to specific and articulable facts which led him to
         reasonably suspect a violation of the Motor Vehicle Code[.]

      Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89, 95–96
      (2011) (internal citations omitted) (emphasis in original).
      “[W]hether an officer had reasonable suspicion that criminality
      was afoot so as to justify an investigatory detention is an
      objective one, which must be considered in light of the totality of
      the circumstances.” Id. at 96.

Commonwealth v. Farnan, 55 A.3d 113, 116 (Pa. Super. 2012) (one

footnote omitted).

      Our Vehicle Code provides, in pertinent part:

      Sun screening and other materials prohibited.−

            No person shall drive any motor vehicle with any sun
      screening device or other material which does not permit a
      person to see or view the inside of the vehicle through the
      windshield, side wing or side window of the vehicle.

75 Pa.C.S.A. § 4524(e)(1).

      In this appeal, Appellant maintains that the police lacked reasonable

suspicion of a Vehicle Code violation to initiate a stop, in violation of his

constitutional rights. (See Appellant’s Brief, at 9). We disagree.

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      Appellant argues chiefly that there was no reasonable suspicion to stop

him because Officer Berkery testified that he and his partner could see a

shadowy figure inside the vehicle.   (See id. at 12; see also N.T. Motion,

9/23/14, at 11 (“You could see a figure, but you couldn’t make it out clearly

because how dark [sic] it was.”)).

      In support, Appellant cites Commonwealth v. Brubaker, 5 A.3d 261,

263 (Pa. Super. 2010) (“[Y]ou could see figures in the vehicle. You could

see there was a driver.”).     (See Appellant’s Brief, at 12).     Appellant’s

reliance is misplaced.

      Initially, we note that Brubaker is a challenge to the sufficiency of the

evidence for his conviction of violation of 75 Pa.C.S.A. § 4524(e)(1). See

Brubaker, supra at 262.       This appeal, in contrast, challenges only the

denial of a motion for suppression. Different standards of review apply. We

review the denial of suppression not to establish the sufficiency of the

evidence for conviction, but only to decide if the suppression court properly

determined that the police had reasonable suspicion that a violation of the

Vehicle Code was occurring or had occurred. See Farnan, supra at 116.

      Next, we note that Appellant quotes a single pair of phrases, out of

total context, to    support the unwarranted inference that the mere

visualization of a figure inside the vehicle disproves a violation of section

4524(e)(1). (See Appellant’s Brief, at 12). It does not.




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      Actually, the Brubaker decision cited several other factors in support

of its conclusion of insufficiency.   See Brubaker, supra at 263 (policer

officer testified he could see inside vehicle during afternoon stop, but

questioned whether interior would be visible at night; officer further testified

that tint was “one of the lighter ones[.]”). Seeing a shadowy figure is not

per se conclusive proof of lack of reasonable suspicion.

      Additionally, we assess reasonable suspicion from the totality of the

circumstances, not merely from an isolated phrase. See Wardlow, supra

at 124–25. Furthermore, unprovoked flight is a factor which supports the

conclusion of reasonable suspicion. See id.

      In fact, even a mistaken belief that a violation of the Vehicle Code had

occurred is enough: “A finding of reasonable suspicion does not demand a

meticulously accurate appraisal of the facts. Indeed, even stops based on

factual mistakes generally are constitutional if the mistake is objectively

reasonable.” Chase, supra at 120 (internal quotation marks and citations

omitted).

      Appellant further argues that when the police got within five feet of the

vehicle, “any basis for their initial suspicion dissipated,” obviating the need

for an investigative detention. (Appellant’s Brief, at 12). This argument is

unavailing. See Commonwealth v. Vincett, 806 A.2d 31, 33 (Pa. Super.

2002), appeal denied, 816 A.2d 1102 (Pa. 2003) (colorable defense to

underlying traffic violation does not affect validity of traffic stop;


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suppression inquiry analyzed from perspective of police officer, not from

perspective of defendant). This conclusion also assumes that the windows

were insufficiently tinted to constitute a violation of section 4524(e)(1), a

self-serving conclusion not supported by the record.

      Finally, Appellant notes that his brother testified that later photographs

of the vehicle proved that only the back windows were heavily tinted. (See

Appellant’s Brief, at 9 n.2; see also N.T. Motion, 9/23/14, at 13-16).

However, in rebuttal, Officer Berkery testified that the photographs did not

have the tint which he observed when he initiated the traffic stop the

preceding November. (See N.T. Motion, 9/23/14, at 17-20).

      This undeveloped argument would not merit relief. It was the role of

the suppression court, sitting as factfinder, to resolve conflicts in the

testimony.    The suppression court judge was free to believe all, part, or

none of a witness’s testimony. See Commonwealth v. Haslam, 138 A.3d

680, 687 (Pa. Super. 2016).         Also, “[i]t is the sole province of the

suppression court, as finder of fact, to weigh the credibility of the

witnesses.”   Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super.

1993) (en banc) (citation omitted).

      Here, we conclude that, viewed in the light most favorable to the

Commonwealth, the suppression court’s conclusion that the police had

specific and articulable facts for a reasonable suspicion that a violation of the




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Vehicle Code had occurred, is supported by the record.2          Appellant’s

constitutional rights were not violated.

       Judgment of sentence affirmed.

       Judge Lazarus joins the Memorandum.

       Judge Ransom concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2017




____________________________________________


2 Because Appellant only claims that the police lacked reasonable suspicion,
we need not address whether the police possessed probable cause, and we
decline to do so. For a comparison of probable cause and reasonable
suspicion for the required level of justification in a vehicle stop, see
Commonwealth v. Haines, 166 A.3d 449, 454 (Pa. Super.2017); see also
Commonwealth v. Salter, 121 A.3d 987, 992–93 (Pa. Super. 2015);
Commonwealth v. Feczko, 10 A.3d 1285, 1286 (en banc) (Pa. Super.
2010), appeal denied, 25 A.3d 327 (Pa. 2011).



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