J-S60033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
SHAKEEM RICE,                             :
                                          :
                 Appellant                :     No. 3352 EDA 2015

     Appeal from the Judgment of Sentence Entered October 29, 2015
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0003870-2015

BEFORE:     SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED OCTOBER 19, 2016

      Shakeem Rice (Appellant) appeals from the October 29, 2015

judgment of sentence of 11 ½ to 23 months of incarceration and three years

of probation imposed following his convictions for carrying a firearm without

a license, carrying a firearm on public streets of Philadelphia, and possession

of a firearm by a person not to possess. On appeal, Appellant challenges the

denial of his pre-trial suppression motion. After careful review, we affirm.

      The trial court offered the following factual and procedural history of

the case.

      The evidence established that on March 28, 2015, at
      approximately 11:55 a.m., Philadelphia Police Officer [Jonathan]
      Sweeney and an unidentified partner were in full uniform, on
      foot patrol on the 2100 block of S. Cemetery Road because of a
      recent spike in residential daytime burglaries when they
      observed three males loitering around a corner business that
      Officer Sweeney knew was closed for the season. The three men
      turned their heads toward the officers and began walking. As

*Retired Senior Judge assigned to the Superior Court.
J-S60033-16


      they were walking toward them, Officer Sweeney observed
      [Appellant] adjust an object at his waist, right below his belt
      buckle. Officer Sweeney stopped the three males and asked for
      identification.   In order to expedite the encounter, Officer
      Sweeney flagged a patrol car to check the validity of the
      identifications the men gave him. As he looked back, he noticed
      [Appellant] adjust the object in his waistband again.

             Officer Sweeney further testified that one of the males
      (later identified as Azer (ph)) would not look at the officers; he
      only stared at the ground. The other male (not identified by
      name) seemed very nervous and was “swaying back and forth.”
      At this time, Officer Sweeney ordered all three males to place
      their hands on the fence and he frisked them. Officer Sweeney
      felt the barrel of a gun in the area where he observed
      [Appellant] adjusting something. Officer Sweeney pulled a .22
      caliber H&R revolver gun from [Appellant’s] waist area and he
      was arrested. [Appellant] did not have a license to carry a gun.

             [Appellant] filed a Motion to Suppress which was heard
      and denied by the Honorable Vincent N. Melchiorre on August
      27, 2015. A waiver trial immediately followed and [Appellant]
      was found guilty of all charges. [Appellant] filed a notice of
      appeal to [this Court]. Following receipt of the notes of
      testimony, [Appellant] was ordered to file a Statement of
      Matters Complained of on Appeal pursuant to Pa.R.A.P. Rule
      1925(b). A Statement of Matters Complained of on Appeal was
      filed on January 4, 201[6].

Trial Court Opinion, 1/29/2016, at 1-3 (footnotes and citations omitted).

      Appellant presents one issue for this Court’s review:

      Did the lower court err in denying [A]ppellant’s motion to
      suppress physical evidence as the officer who stopped, frisked,
      and arrested [A]ppellant merely saw [A]ppellant standing on a
      public sidewalk and make a motion with his hands at his
      waistband and, thus, did not possess the requisite reasonable
      suspicion that [A]ppellant was involved in criminal activity to
      justify the stop?

Appellant’s Brief at 3 (trial court answer omitted).




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     We consider Appellant’s question mindful of the following.

     Our 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 factual findings are
     supported by the record, we are bound by these 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 court[]
     below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).             “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. Stilo, 138 A.3d 33, 35–36 (Pa. Super.

2016).

     The following principles guide our review if this matter.

            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. The three levels of
     interaction are mere encounter, investigative detention, and
     custodial detention. 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. A mere
     encounter does not carry any official compulsion to stop or



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        respond to police, and as a result, does not need to be supported
        by any level of suspicion. In contrast, an investigative detention
        carries an official compulsion to stop and respond.           The
        detention is temporary, but it must be supported by specific and
        articulable facts creating a reasonable suspicion that the suspect
        is engaged in criminal activity. The test for reasonable suspicion
        is an objective one: … whether the officer’s action was justified
        at its inception, and whether it was reasonably related in scope
        to the circumstances which justified the interference in the first
        place. Regarding the stop, a police officer may, short of an
        arrest, conduct an investigative detention if he has a reasonable
        suspicion, based upon specific and articulable facts, that
        criminality is afoot. The assessment of reasonable suspicion, like
        that applicable to the determination of probable cause, requires
        an evaluation of the totality of the circumstances, with a lesser
        showing needed to demonstrate reasonable suspicion in terms of
        both quantity or content and reliability. Finally, an arrest or
        custodial detention must be supported by probable cause.

              To determine if an interaction rises to the level of an
        investigative detention, i.e., a Terry[1] stop, the court must
        examine all the circumstances and determine whether police
        action would have made a reasonable person believe he was not
        free to go and was subject to the officer’s orders. To guide this
        crucial analysis, the United States Supreme Court has devised an
        objective test entailing whether, in view of all surrounding
        circumstances, a reasonable person would believe 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. No single factor should control this determination,
        and courts must examine the totality of the circumstances when
        reaching a conclusion as to whether a seizure occurred.

Commonwealth v. Guzman, 44 A.3d 688, 692-93 (Pa. Super. 2012)

(internal citations and quotation marks omitted).




1
    Terry v. Ohio, 392 U.S. 1 (1968).



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      Appellant first argues that his interaction with the police was, from the

start, an investigative detention: “[t]he uniformed police officer subjected

[A]ppellant to an investigative detention and subsequent [Terry] frisk, when

he ordered him to stop and asked him for identification. As the officer did

not have the requisite reasonable suspicion to support the initial stop, the

frisk, and subsequent arrest, was [sic] also illegal.” Appellant’s Brief at 10.

      The trial court2 determined that Officer Sweeney’s request for

Appellant’s identification was a mere encounter. Specifically, in finding the

police were allowed to ask for identification without the encounter becoming

an investigative detention, the court found that Officer Sweeney’s request

for identification was not accompanied with a “compulsion for these males to

stay and give identification[.]” Trial Court Opinion, 1/29/2016, at 5-6.

      We disagree with the trial court’s legal conclusion. Specifically, we find

the following excerpts from the suppression hearing pertinent to our

disposition.


      [The Commonwealth:] What did you do after you observed this?

      [Officer Sweeney:] After I observed him adjust something below
      his belt buckle, we stopped him for investigation of the daytime
      burglaries. At that point we pulled a car over to run the names
      faster, and then when the car came, I drew my attention to their
      car. I looked back, and he adjusted something below his belt
      buckle again.

2
 Because the judge who presided over Appellant’s suppression hearing and
waiver trial was no longer a sitting judge, the Rule 1925(a) opinion before us
was authored by the Honorable Jeffrey P. Minehart.


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N.T., 8/27/2015, at 11.

      [Defense Counsel:]    You actually ordered all three people to
      stop, correct?

      [Officer Sweeney:] Yes.

      [Defense Counsel:] You were holding them until you could run
      the IDs, correct?

      [Officer Sweeney:] Yes.

Id. at 21.

      Despite the protestations of the Commonwealth and trial court to the

contrary, we find no evidence to support the court’s finding that “[t]he

request for identification was not accompanied by physical restraint,

manifestation of authority, or a mandate to comply.”    Trial Court Opinion,

1/29/2016, at 6. The suppression hearing transcript does not support the

notion that compliance with the request for identification was voluntary,

especially considering Officer Sweeney answered in the affirmative when

questioned if he ordered Appellant and his cohorts to stop. Notably, Officer

Sweeney testified Appellant was stopped for an “investigation.”          The

Commonwealth did not elicit additional context for the officer’s answers, and

we do not accept an invitation to presume what the officer intended to

communicate at the hearing.     Under these circumstances, we do not find

that Officer Sweeney’s initial encounter with Appellant was a mere

encounter. Rather, it was an investigative detention.




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However, our analysis does not end there because we may affirm on any

basis.      See Commonwealth v. Clouser, 998 A.2d 656, 661, n.3 (Pa.

Super. 2010) (“It is well-settled that this Court may affirm on any basis”).

         Therefore, we now review the record to determine if Officer Sweeney

possessed the requisite reasonable suspicion needed to stop Appellant

lawfully.

         [A]n “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.

Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000).

         An investigative detention, unlike a mere encounter, constitutes
         a seizure of a person and thus activates the protections of Article
         1, Section 8 of the Pennsylvania Constitution. To institute an
         investigative detention, an officer must have at least a
         reasonable suspicion that criminal activity is afoot. Reasonable
         suspicion requires a finding that based on the available facts, a
         person of reasonable caution would believe the intrusion was
         appropriate.

Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003)

(some citations omitted).

         After   a   thorough   review,   we    find   Officer   Sweeney   possessed

reasonable suspicion to stop Appellant. As testified by Officer Sweeney, he

and his partner were on foot patrol in a high-crime area due to an increase

in daytime burglaries in the neighborhood. N.T., 8/27/2016, at 7. Seeing




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Appellant and two other individuals loitering outside a business the officer

knew was closed for the season, he and his partner began to walk towards

them. Id. at 8-10. The three men noticed the officers and began walking.

Id. at 10.     While walking, Officer Sweeney observed Appellant adjust

“something below his belt buckle.”   Id. at 11.   Aware based on his police

training that firearms are often concealed in this area,3 Officer Sweeney

stopped the three men to inquire further. Id.

      We find the totality of the circumstances and the facts as relayed by

Officer Sweeney provided him the requisite reasonable suspicion necessary

to initiate a stop.   See Commonwealth v. Zhahir, 751 A.2d 1153, 1157

(Pa. 2000) (“[Illinois v. Wardlow, 120 S.Ct. 673, 676, (2000), explained]

that an area of expected criminal activity is a relevant contextual

consideration, as is nervous or evasive behavior, in determining reasonable

suspicion[.] [In Zahir, police were able to corroborate an anonymous call

received when the officer] was confronted with an individual whose actions

appeared to be consistent with retrieval of a weapon from his pocket.    In

light of the totality of this information, the officers were justified in

conducting an investigative detention.”). See also Commonwealth v.

Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (some citations omitted)

(“[R]easonable suspicion is based upon an objective standard, not subjective

3
  Officer Sweeney testified that “[i]n defense tactics, we were trained to
always watch the hands and that weapons are commonly placed in the
waistband area.” N.T., 8/27/2015, at 19.


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intent. As the United States Supreme Court noted in Maryland v. Macon,

[472 U.S. 463, (1985)], “Whether a Fourth Amendment violation has

occurred ‘turns on an objective assessment of the officer’s actions in light of

the facts and circumstances confronting him at the time,’ Scott v. United

States, 436 U.S. 128, 136, [] (1978), and not on the officer’s actual state of

mind at the time the challenged action was taken.”).

      Having   determined    that   Officer   Sweeney’s     initial   encounter   of

Appellant   was   lawful,   we   consider     Appellant’s   remaining    argument

concerning the legitimacy of the subsequent Terry frisk.          Appellant claims

that Officer Sweeney’s “stop and frisk of [A]ppellant was unconstitutional as

the officer merely saw [A]ppellant standing on a public sidewalk in the

middle of the day and make a movement towards his waistband and, thus,

did not observe unusual conduct which could lead [him] to reasonably

conclude that criminal activity was afoot.” Appellant’s Brief at 12.

      We begin with an examination of the relevant legal principles.

             If, during the course of a valid investigatory stop, an
      officer observes unusual and suspicious conduct on the part of
      the individual which leads him to reasonably believe that the
      suspect may be armed and dangerous, the officer may conduct a
      pat-down of the suspect’s outer garments for weapons. In order
      to justify a frisk under Terry, the officer must be able to point to
      particular facts from which he reasonably inferred that the
      individual was armed and dangerous. Such a frisk, permitted
      without a warrant and on the basis of reasonable suspicion less
      than probable cause, must always be strictly limited to that
      which is necessary for the discovery of weapons which might be
      used to harm the officer or others nearby.




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Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999) (internal citations

and quotation marks omitted).

      In concluding Officer Sweeney’s Terry stop and frisk was lawful, we

find Appellant’s argument ignores the applicable standards:

      In order to determine whether the police officer had reasonable
      suspicion, the totality of the circumstances must be considered.
      … 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 facts,
      when taken together, may warrant further investigation by the
      police officer.

Commonwealth v. Kemp, 961 A.2d 1247, 1255 (Pa. Super. 2008) (en

banc) (citations and quotation marks omitted). Here, Appellant’s continued

adjustment of his waistband, in conjunction with the behaviors of his cohorts

and the Officer’s training and knowledge that weapons are often concealed

in waistbands, established a reasonable suspicion that Appellant might be

carrying a weapon. See Foglia, 979 A.2d at 361-62 (after encountering the

defendant, the officer noticed that “[Foglia] touched his waist area and sat

down on a stoop behind some females. The police officer was aware, based

upon his experience with armed suspects, that weapons are often concealed

in a person’s waistband. Thus, Officer Scott had more than ample facts at his

disposal to believe that [Foglia] was armed with a gun. … [Foglia] displayed

hand movements consistent with custody of a weapon in his waistband,

where such items are commonly hidden.          As this latter action occurred

before the patdown, it can be used to support the officer’s actions.”).



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     Because Officer Sweeney was justified in performing a Terry frisk, the

suppression court properly denied Appellant’s motion to suppress the

firearm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/19/2016




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