J-S74022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL SHIELDS

                             Appellant                No. 1503 EDA 2017


          Appeal from the Judgment of Sentence Entered May 1, 2017
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0012419-2015


BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 11, 2019

        Appellant Michael Shields appeals from the May 1, 2017 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”), following his stipulated bench conviction for firearms not to be carried

without a license and carrying firearms in public in Philadelphia.1 Upon review,

we affirm.

        The facts and procedural history of this case are undisputed.         As

recounted by the trial court:

        Appellant was arrested on November 20, 2015 following an
        encounter with uniformed police officers who were responding to
        a radio call for gunshots in the area. Prior to trial, Appellant
        moved for suppression of the physical evidence seized at the time
        of his arrest, namely the gun, which was denied by th[e] court.
        Following a stipulated trial incorporating all testimony heard as

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1   18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
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     part of the suppression motion, th[e] court found Appellant guilty
     of violations of the Uniform Firearms Act [(“VUFA”)].

            The Commonwealth’s case consisted of the testimony of one
     of the responding police officers, Officer Mirabella, as well as four
     (4) exhibits moved into evidence, including a map of the area
     where the arrest took place, the property receipt and ballistic
     report for the gun and certificate of non-licensure.          Officer
     Mirabella testified as follows. He and his partner (McCabe) were
     in uniform and in a marked police vehicle when they received a
     radio call at approximately 12:35 am for gunshots on the 2400
     block of Park. On cross-examination, he acknowledged that the
     radio call may have indicated that the shots were coming from
     inside 2315 North Park. The radio call was vague and did not
     provide a description nor information on the shooter. As a result
     of the call, he began to survey the area and within five (5) minutes
     he came into contact with Appellant near the 2400 block of North
     13th which was about one block from where the shots were
     reported to be fired.

           Appellant and another male (defense witness, Sherrod
     West) were standing near a silver Chevy Impala. The vehicle was
     parked on the left side of the street and was therefore nearer to
     Officer Mirabella who was driving the patrol [vehicle]. Mr. West
     was standing in the street directly behind the car at the trunk area
     and Appellant was standing near the pavement at the driver’s side
     rear quarter panel. The officer remained in his patrol [vehicle]
     and asked the men if they had heard gunshots. Mr. West
     responded ‘no’ but Appellant did not respond and after looking at
     the officers he immediately looked away. Officer Mirabella stated
     that Mr. West was acting normally and was having a casual
     conversation with the officers. At no time did either officer ask
     the men to stop nor come to the patrol [vehicle]. Officer Mirabella
     focused his attention on Appellant because Appellant had quickly
     looked away and would not make eye contact with the officers.

           The officer testified that he could only see Appellant from
     the midsection up but while observing him, the officer saw
     Appellant motion (his hand) toward his waistband area and also
     moved to block his body from behind the car, and bladed his body
     [a]way from the officers. Further, the officer no longer was able
     to see Appellant’s hand that had [gone] down towards his
     waistband and over his jacket nor that side of Appellant’s waist
     once Appellant bladed his body behind the car. Although the


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        officer could not see a firearm, based upon his experience he
        believed Appellant was in possession of a firearm. At the time of
        this arrest, Officer Mirabella had been a police officer for three (3)
        years and had been assigned during that time to the 22nd district
        which he described as one of the worse crime areas in the city
        with a lot of shootings and that he had personally recovered
        several firearms in that district.

               Officer Mirabella exited his patrol [vehicle] and approached
        Appellant and again asked Appellant if he was okay and Appellant
        did not respond and looked like he was frozen and could [not]
        speak and then stumbled over his words. He appeared extremely
        nervous and had sweat across his forehead despite it being the
        month of [November]. Officer Mirabella then told Appellant to put
        his hands on the car and performed a Terry[2] frisk and found a
        firearm in the front right side of Appellant’s waistband, which was
        where the officer saw Appellant reach his hand earlier. The
        officer’s thumb had hit the firearm during the frisk and the officer
        immediately knew it was a firearm. Whereupon Appellant was
        placed under arrest for VUFA.

              On cross-examination, the officer acknowledged that
        neither man attempted to flee and that some people who have not
        committed a crime appear nervous and sweat in the presence of
        police officers. He stated that based upon the totality of the
        circumstances that he was 70 percent sure Appellant had a gun.
        The Commonwealth then rested for purposes of the suppression
        motion.

               Appellant called Sherrod West to testify and he did so as
        follows. He and Appellant were friends and had graduated school
        together in 2014 and did some film and photo work projects
        together, including that night. He had misplaced his computer
        and he and Appellant went outside to his car to try and find it
        when the marked police [vehicle] came upon them. The officers
        asked them if everything was okay and he responded yes but that
        he was the only one talking and that Appellant was “quiet the
        whole time.” He was speaking with Officer Mirabella who had
        asked if he had thoroughly checked the whole car and then asked
        if they had anything in the car, to which he responded no. He
        testified that Officer Mirabella asked him [if] Appellant was okay
        and he responded [] yes. Officer Mirabella then jumped out of the
____________________________________________


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

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       patrol [vehicle] and started talking to Appellant and asked him
       “what do you have on you?” but Appellant did not say anything in
       response. The officer then felt Appellant and found a gun.

              On cross-examination, Mr. West agreed that officers did not
       tell him nor Appellant to stop and had just engaged them in a
       casual conversation and while doing so he was looking at the
       officers but that only he was talking with the officers not Appellant.
       He also agreed that Appellant was standing off to the side and that
       the trunk of the car was in between him and Appellant.

             Appellant then was called for demonstrative purposes only
       and put on the jacket that he was wearing when he was arrested,
       indicating that it was being worn open that night and th[e] court
       placed onto the record that the jacket extended about four (4)
       inches below the waist of Appellant. Appellant then rested for
       purposes of the motion, with the admission of the police radio call
       tape. Following argument th[e] court denied the motion to
       suppress the firearm. The case then proceeded to trial with both
       the Commonwealth and Appellant agreeing to a stipulated trial
       with the admission of all evidence received by the court for
       purposes of the suppression motion, together with a stipulation as
       to Appellant’s good character.

              Th[e trial] court found Appellant guilty of both firearms
       charges and following the submission of a pre-sentencing report,
       sentenced Appellant within the guidelines.[3] Appellant timely filed
       his notice of appeal of th[e] court’s decision to the Pennsylvania
       Superior Court. On May 15, 2017 th[e] court issued a Pa.R.A.P.
       1925(b) order directing Appellant to file his statement of errors
       complained of on appeal. However, Appellant’s statement was not
       filed until November 3, 2017, following an order by the Superior
       Court directing Appellant to do so within twenty-one (21) days.
       [In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.]

Trial Court Opinion, 12/6/17, 1-5 (unnecessary capitalizations and record

citations omitted).


____________________________________________


3Prior to sentencing, Appellant moved for extraordinary relief, renewing his
motion to suppress the firearm. The trial court denied the motion on May 1,
2017, on the day of sentencing.

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      On appeal, Appellant argues only that the trial court erred in denying

his motion to suppress the gun. Appellant’s Brief at 6, 16.

      In reviewing appeals from an order denying suppression, our standard

of review is limited to determining

      whether [the trial court’s] factual findings are supported by the
      record and whether [its] legal conclusions drawn from those facts
      are correct. When reviewing the rulings of a [trial] court, the
      appellate court considers 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.
      When the record supports the findings of the [trial] court, we are
      bound by those facts and may reverse only if the legal conclusions
      drawn therefrom are in error.

Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our

scope of review is limited to the evidence presented at the suppression

hearing. In re interests of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).

      Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution protect the people from

unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 298,

302 (Pa. 2014) (citation omitted). The Lyles Court explained:

      Jurisprudence arising under both charters has led to the
      development of three categories of interactions between citizens
      and police. The first, a “mere encounter,” does not require any
      level of suspicion or carry any official compulsion to stop and
      respond. The second, an “investigatory detention,” permits the
      temporary detention of an individual if supported by reasonable
      suspicion. The third is an arrest or custodial detention, which
      must be supported by probable cause.

            In evaluating the level of interaction, courts conduct an
      objective examination of the totality of the surrounding
      circumstances. . . . The totality-of-the-circumstances test is


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      ultimately centered on whether the suspect has in some way been
      restrained by physical force or show of coercive authority. Under
      this test, no single factor controls the ultimate conclusion as to
      whether a seizure occurred—to guide the inquiry, the United
      States Supreme Court and [our Supreme] Court have employed
      an objective test entailing a determination of whether a
      reasonable person would have felt free to leave or otherwise
      terminate the encounter. What constitutes a restraint on liberty
      prompting a person to conclude that he is not free to leave will
      vary, not only with the particular police conduct at issue, but also
      with the setting in which the conduct occurs.

             [Our Supreme] Court and the United States Supreme Court
      have repeatedly held a seizure does not occur where officers
      merely approach a person in public and question the individual or
      request to see identification. Officers may request identification
      or question an individual so long as the officers do not convey a
      message that compliance with their requests is required.
      Although police may request a person’s identification, such
      individual still maintains the right to ignore the police and go about
      his business.

Id. at 302-03 (internal citations and quotation marks omitted). “We adhere

to the view that a person is ‘seized’ only when, by means of physical force or

a show of authority, his freedom of movement is restrained. Only when such

restraint is imposed is there any foundation whatever for invoking

constitutional safeguards.”   United States v. Mendenhall, 446 U.S. 544,

553 (1980).

      Here, it is undisputed that Officer Mirabella’s pat-down of Appellant

amounted to an investigative detention necessitating reasonable suspicion. It

is settled that reasonable suspicion necessary for investigative detentions

      is a less demanding standard than probable cause not only in the
      sense that reasonable suspicion can be established with
      information that is different in quantity or content than that
      required to establish probable cause, but also in the sense that



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      reasonable suspicion can arise from information that is less
      reliable than that required to show probable cause.

Commonwealth v. Davis, 102 A.3d 996, 1000 (Pa. Super. 2014) (citations

omitted). In Commonwealth v. Simmons, 17 A.3d 399 (Pa. Super. 2011),

appeal denied, 25 A.3d 328 (Pa. 2011), we explained that Pennsylvania has

adopted the holding of Terry:

      [T]he Terry stop and frisk[] permits a police officer to briefly
      detain a citizen for investigatory purposes if the officer observes
      unusual conduct which leads him to reasonably conclude, in light
      of his experience, that criminal activity may be afoot. Terry
      further held that when an officer is justified in believing that the
      individual whose suspicious behavior he is investigating at close
      range is armed and presently dangerous to the officer or to others
      the officer may conduct a pat down search to determine whether
      the person is in fact carrying a weapon. The purpose of this
      limited search is not to discover evidence of crime, but to allow
      the officer to pursue his investigation without fear of violence.

      In order to conduct an investigatory stop, the police must have
      reasonable suspicion that criminal activity is afoot. In order to
      determine whether the police had reasonable suspicion, the
      totality of the circumstances—the whole picture—must be
      considered. Based upon that whole picture the detaining officers
      must have a particularized and objective basis for
      suspecting the particular person stopped of criminal
      activity. To conduct a pat down for weapons, a limited search or
      frisk of the suspect, the officer must reasonably believe that his
      safety or the safety of others is threatened.

Simmons, 17 A.3d at 403 (citations, quotation marks, brackets, and some

paragraph breaks omitted) (emphasis added). In assessing the totality of the

circumstances, a court must give weight to the inferences that a police officer

may draw through training and experience.       Commonwealth v. Holmes,

14 A.3d 89, 95 (Pa. 2011); see Commonwealth v. Williams, 980 A.2d 667,



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672 (Pa. Super. 2009) (citations omitted) (noting that “[r]easonable suspicion

must be based on specific and articulable facts, and it must be assessed based

upon the totality of circumstances viewed through the eyes of a trained police

officer.”), appeal denied, 990 A.2d 730 (Pa. 2010).

       However, “[t]he officer need not be absolutely certain that the individual

is armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or the safety of others was in

danger.” Commonwealth v. Taylor, 771 A.2d 1261, 1268-69 (Pa. 2001).

In conducting a reasonable suspicion inquiry, a suppression court is required

to “afford due weight to the specific, reasonable inferences drawn from the

facts in light of the officer’s experience[.]” Commonwealth v. Brown, 996

A.2d 473, 477 (Pa. 2010). If weapons are found because of the pat-down

search, the police officer may seize them. Commonwealth v. Thompson,

939 A.2d 371, 376 (Pa. Super. 2007), appeal denied, 956 A.2d 434 (Pa.

2008).    Moreover, officers may seize nonthreatening contraband “if it is

discovered in compliance with the plain feel doctrine[.]”4 Id.


____________________________________________


4Appellant here does not challenge the applicability of the plain feel doctrine,
pursuant to which:
       a police officer may seize non-threatening contraband detected
       through the officer’s sense of touch during a Terry frisk if the
       officer is lawfully in a position to detect the presence of
       contraband, the incriminating nature of the contraband is
       immediately apparent from its tactile impression and the officer
       has a lawful right of access to the object.
Commonwealth v. Pakacki, 901 A.2dd 983 (Pa. 2006).

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      Instantly, based on the totality of the circumstances of this case, it is

beyond peradventure that Officer Mirabella had reasonable suspicion to

believe that Appellant might be armed and dangerous. As aptly explained by

the trial court:

      [Officer Mirabella] testified that during the initial encounter with
      Appellant and his friend, Appellant did not answer his questions
      nor make eye contact with the officers. Further, while speaking
      with Appellant’s friend, [Officer Mirabella] observed Appellant
      reach his hand down into his waistband area and then blade his
      body behind the [parked car] so that the officer was no longer
      able to see either Appellant’s hand or his waistband area where
      Appellant had been reaching.          The officer further observed
      Appellant sweating on his forehead despite the fact that it was a
      late evening during the month of [November]. Finally, when the
      officer exited his patrol [vehicle] and went to where Appellant was
      standing, Appellant again did not respond to the officer’s
      questions, and then stumbled over his words and appeared
      nervous. Given the totality of the circumstances testified to by
      Officer Mirabella, including that this was a high-crime area, the
      late hour (12:30 am), the radio call of shots fired and his
      observations of Appellant (lack of response to officer’s routine
      questions, lack of eye contact, acting nervous, sweating, reaching
      his hand down into his waistband area and blading the waistband
      area of his body behind the vehicle and out of the view of the
      officers), the officer was able to point to specific and articulable
      facts for this trial court indicating reasonable suspicion that
      Appellant was armed and dangerous.

Trial Court Opinion, 12/6/17, at 7. Accordingly, the trial court did not err in

denying Appellant’s motion to suppress the physical evidence (gun) recovered

from Appellant’s person by Officer Mirabella because of the pat-down.

      Finally, insofar as Appellant relies on Commonwealth v. Moyer, 954

A.2d 659 (Pa. Super. 2008) (en banc), appeal denied, 966 A.2d 571 (Pa.

2009), Commonwealth v. Preacher, 827 A.2d 1235 (Pa. Super. 2003),


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Commonwealth        v.   Gray,   896    A.2d    601   (Pa.   Super.   2006),   and

Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super. 2010), appeal

denied, 13 A.3d 474 (Pa. 2010), to challenge the trial court’s denial of his

suppression motion, such reliance is misplaced because the instant case is

distinguishable.

      In Moyer, the Commonwealth argued that the investigative detention

of the defendant was supported by reasonable suspicion because there “was

a lot of movement between the driver and the passenger,” all of which focused

down toward the floor boards and toward the passenger side of the vehicle,

and the defendant was nervous. Moyer, 954 A.2d at 669. In affirming the

trial court’s grant of the defendant’s suppression motion, we disagreed with

the Commonwealth’s contention.          In so doing, we found that “[f]urtive

movements and nervousness, standing alone, do not support the existence of

reasonable suspicion.” Id. at 670. Here, Appellant’s furtive movements were

more pronounced because he reached for his waistband, bladed his body from

Officer Mirabella’s view and otherwise sought to conceal his body behind the

parked car. Unlike in Moyer, Officer Mirabella also specifically articulated the

reason for Appellant’s nervousness. As noted earlier, Officer Mirabella testified

that Appellant did not respond to his questions and, after looking at the

officers, Appellant immediately looked away. Appellant failed to make any

eye contact and did not respond to the officer’s questions. Additionally, Officer

Mirabella described Appellant as sweating on a cold November night.




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      Similarly, the instant case is distinguishable from Preacher, Gray, and

Cooper. In Preacher, we concluded that the officer “did not articulate any

specific facts that led him to believe that [the defendant] may have been

armed and/or dangerous.” Preacher, 827 A.2d at 1240. Rather, the officer

observed only that the defendant was acting nervously because his “eyes were

bulging, he was looking back and forth, [and] tossing the money” he had in

his hands. Id. In Gray, we held that the officer did not have reasonable

suspicion to pat down the defendant because the officer “had very little basis

to believe that [the defendant] was armed and dangerous. In fact, but for

nervousness, police had no basis: the articulated justification for intruding

into [the defendant’s] privacy was that he seemed to be ‘a little nervous’ and

slightly sweating.” Gray, 896 A.2d at 606. In Cooper, we concluded, inter

alia, that the police officer did not have reasonable suspicion to conduct a pat-

down search at 9:00 a.m. because there was no evidence that the defendant

was in a “dangerous neighborhood.” Cooper, 994 A.2d at 594. Additionally,

we noted that the defendant “merely moved toward his pocket and ceased

immediately upon the officer’s directive.” Id. Here, as mentioned earlier,

Officer Mirabella, who was responding to a radio call for shots fired, had

reasonable suspicion to believe that Appellant was armed and dangerous.

Appellant, standing outside in a high-crime area at 12:30 am, appeared

nervous, reached toward his waistband, bladed his body away from the

officers, failed to make eye contact, and seemed non-responsive to the

officer’s questions.

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     In sum, in light of the totality of the circumstances present here, we

cannot conclude that the trial court erred in denying Appellant’s motion to

suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/19




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