J-S59015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
CUE ROCKEYMORE,                          :
                                         :
                        Appellant        :     No. 2870 EDA 2013


      Appeal from the Judgment of Sentence Entered October 9, 2013,
           In the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No. CP-51-CR-0009110-2013.


BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 02, 2014

      Appellant, Cue Rockeymore, appeals from the judgment of sentence

entered following his conviction of firearms violations. We affirm.

      The trial court summarized the procedural history of this case as

follows:

             Appellant, Cue Rockeymore, was found guilty following a
      waiver trial on October 9, 2013 of Firearms Not To Be Carried
      Without License (18 Pa.C.S.A. § 6106 §§A1) and Carrying
      Firearms in Public in Philadelphia (18 Pa.C.S.A. § 6108). Prior to
      trial, defense counsel litigated a motion to suppress which was
      denied. Commonwealth presented the testimony of Police
      Officers Sean McKnight and Thomas Bellon as well as a
      certificate of non-licensure and a ballistician’s report. Defense
      presented no testimony but did move into evidence a map and
      picture of the place of arrest. Appellant was sentenced to a time
      in [sic] to twenty-three (23) months of county incarceration
      followed by three (3) years reporting probation, concurrent on
      each charge.
______________________________
*Retired Senior Judge assigned to the Superior Court.
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            Appellant filed a timely notice of appeal on October 11,
      2013.    This Court entered an Order pursuant to Pa.R.A.P.
      1925(b) directing Appellant to file and serve a concise statement
      of errors complained of on appeal within twenty-one (21) days.
      After granting an extension of time, Appellant filed a 1925(b)
      statement on December 20, 2013.

Trial Court Opinion, 1/16/14, at 1. The trial court filed an opinion pursuant

to Pa.R.A.P. 1925(a) on January 16, 2014.

      Appellant presents the following issue for our review:

             Did not the lower court err when it denied [A]ppellant’s
      motion to suppress where two police officers seized the
      appellant, who was merely walking down the street, without
      reasonable suspicion or probable cause and therefore, their
      subsequent recovery of a firearm from him was the fruit of an
      illegal seizure?

Appellant’s Brief at 3.

      “When reviewing the propriety of a suppression order, an appellate

court is required to determine whether the record supports the suppression

court’s factual findings and whether the inferences and legal conclusions

drawn by the suppression court from those findings are appropriate.”

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

“Where the Commonwealth prevailed on the suppression motion, we

consider only the evidence of the prosecution and so much of the defense

that remains uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589,

591 (Pa. Super. 2010).




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      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.

Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en

banc).    To the extent that the suppression court’s factual findings are

supported by the record, “we are bound by those facts and will only reverse

if the legal conclusions are in error.”      Cooper, 994 A.2d at 591.        As an

appellate court, it is our duty “to determine if the suppression court properly

applied the law to the facts.”    Commonwealth v. Maldonado, 14 A.3d

907, 910 (Pa. Super. 2011) (citation omitted).

      Appellant argues that the trial court erred in denying his motion to

suppress the gun that the Officers recovered from him. Appellant’s Brief at

16. Appellant maintains that he was seized when the Officers approached

him, positioning themselves on either side of Appellant, and that the Officers

“did not have reasonable suspicion to seize” Appellant. Id. at 10. Appellant

also contends that the Officers did not have reasonable suspicion justifying

an investigative detention. Id. at 15. As a result, Appellant maintains that

the gun was recovered as a result of an unlawful seizure, and thus should be

suppressed as fruit of the poisonous tree. Id. at 16.

      Contacts between the police and citizenry fall within three general

classifications:




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      The first [level of interaction] 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 to
      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 equivalent of
      an arrest. Finally an arrest or “custodial detention” must be
      supported by probable cause.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa. Super. 2011).

      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. Lyles, 54 A.3d 76, 79-80 (Pa. Super. 2012).

      An investigative detention must be supported by reasonable suspicion,

which is a less stringent standard than probable cause. Foglia, 979 A.2d at

360. “In order to determine whether the police had reasonable suspicion,

the totality of the circumstances - the whole picture - must be considered.”

Commonwealth v. Simmons, 17 A.3d 399, 403. Given the totality of the

circumstances, “the detaining officers must have a particularized and

objective basis for suspecting the particular person stopped of criminal

activity.”   Id. (quoting Unites States v. Cortez, 449 U.S. 411, 417-418




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(1981)). “[W]e must give due weight to the specific reasonable inferences

the police officer is entitled to draw from the facts in light of his experience.”

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

banc) (citation and quotation marks omitted). Furthermore:

      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. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006)

(citations and internal quotations omitted). Additionally, suspicious behavior

of the suspect may ultimately provide reasonable suspicion that justifies an

investigative detention. Foglia, 979 A.2d at 360-361. We have clarified the

type of observable behavior that would be relevant to this inquiry:

      Evasive behavior also is relevant in the reasonable suspicion
      mix. [Illinois v.] Wardlow, [528 U.S. 119 (2000)]; accord
      Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 908
      (2000) (“nervous, evasive behavior such as flight is a pertinent
      factor in determining reasonable suspicion”). Moreover, whether
      the defendant was located in a high crime area similarly supports
      the existence of reasonable suspicion.        Wardlow, supra.
      Finally, if a suspect engages in hand movements that police
      know, based on their experience, are associated with the
      secreting of a weapon, those movements will buttress the
      legitimacy of a protective weapons search of the location where
      the hand movements occurred. In Interest of O.J., 958 A.2d
      561 (Pa. Super. 2008) (en banc ).




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Id. at 361. “Evidence obtained from an unreasonable search or seizure is

inadmissible at trial.”   Commonwealth v. Campbell, 862 A.2d 659, 663

(Pa. Super. 2004).

      Additionally,   based   upon   the   exception   to   the   prohibition   of

warrantless searches and seizures carved out by the United States Supreme

Court in Terry v. Ohio, 392 U.S. 1, 30 (1968):

      [w]hen 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. Terry, [392 U.S. at 24].
      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. Adams v. Williams, 407 U.S. 143, 146, 92
      S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Simmons, 17 A.3d at 403 (internal quotation marks omitted). “To justify a

frisk incident to an investigatory stop, the police need to point to specific

and articulable facts indicating the person they intend to frisk may be

armed and dangerous; otherwise, the talismanic use of the phrase ‘for our

own protection[]’ … becomes meaningless.”         Cooper, 994 A.2d at 593

(citation and quotation omitted; emphasis in original).     We are “guided by

common sense concerns, giving preference to the safety of the officer during

an encounter with a suspect where circumstances indicate that the suspect

may have, or may be reaching for, a weapon.” Commonwealth v. Mack,

953 A.2d 587, 590 (Pa. Super. 2008).




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     In the case sub judice, Officer McKnight testified that he and his

partner were driving southbound on 2nd Street in the City of Philadelphia on

the night in question at approximately 12 a.m.       N.T., 10/9/13, at 6-7.

Officer McKnight’s attention was drawn to Appellant because he “observed

[Appellant] adjust an object in the center of his waistband and then pin his

right arm against his body and not move his arm, but he continued walking.”

Id. at 8. Officer McKnight explained that the area was well lit and that he

was approximately seven to eight feet from Appellant when he observed

him. Id. at 8. After seeing Appellant grab the object in his waistband, the

officers circled the block in their patrol car. Id. at 8-9. After coming back

around to 2nd Street, Officer McKnight testified that Appellant was still

walking on the sidewalk of 2nd Street. Id. at 9. The officers then parked

and exited the vehicle.   Id.   As they were exiting the vehicle, Appellant

“froze” on the sidewalk. Id. Neither officer told Appellant to stop nor did

they draw their weapons on Appellant. Id. at 10.

     Officer McKnight further testified that after Appellant stopped and

“pretty much as soon as my partner stepped up onto the sidewalk,” Officer

McKnight’s partner yelled “gun.”   N.T., 10/9/13, at 10.   At that point, the

officers secured Appellant and Officer Bellon recovered a silver revolver

loaded with six live rounds from the center of Appellant’s waistband. Id. at

10-11.




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      Officer McKnight also explained that the area of 3200 North 2nd Street

is a “very violent area.      High crime, like high narcotics, high gun area,

definitely.”    N.T., 10/9/13, at 11.     Officer McKnight stated that he had

previously made arrests related to guns or shootings in that area.           Id.

Officer McKnight also testified that at the time of the incident, he was in the

process of transporting a prisoner who was a suspect in an unrelated

shooting that had occurred two to three blocks away from where Appellant

was stopped. Id. at 11-12.

      Officer Bellon also testified.    N.T., 10/9/13, at 23-38.   Officer Bellon

testified that on June 29, 2013, at approximately 12:10 a.m., he was on

duty with Officer McKnight and they were in the area of 3200 North 2 nd

Street in Philadelphia. Id. at 24. The Officers had just left the scene of a

nearby shooting and were transporting a suspect from that shooting when

they turned southbound onto 2nd Street and observed a male, identified as

Appellant, walking northbound on 2nd Street. Id. at 25. Officer McKnight

alerted Officer Bellon that Appellant “had reached for his waistband and then

bladed his arm against his waistband.” Id. After circling the block in their

vehicle, the officers parked their car in front of Appellant’s location on the

sidewalk.      Id.   Officer Bellon exited the vehicle and explained:    “[a]s I

approached the sidewalk, [Appellant] froze. He wouldn’t move.” Id. Officer

Bellon testified that upon his exiting the car and approaching Appellant, the




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officer did not say anything to Appellant to cause Appellant to stop. Id. at

25.   Officer Bellon provided the following summary of his subsequent

interaction with Appellant:

            [A]s I approached [Appellant], I observed a silver firearm
      with a wooden handle in his waistband between his blazer and
      his orange polo shirt; the same one he’s wearing right now. At
      that point I went to secure [Appellant]. He made a reaching
      movement towards the weapon. We then secured him against
      the wall. I then recovered the firearm, which was a .38 Smith &
      Wesson long, with a serial number -- if I may refer to my notes -
      - 707471, which was loaded with six live rounds and it was
      placed on a Philadelphia property receipt.

Id. Officer Bellon testified that the actions of his stepping onto the sidewalk

and seeing the gun in Appellant’s waistband were simultaneous. Id. at 36.

      Officer Bellon explained that after securing the gun, Appellant stated

that he did not have a permit to carry it. N.T., 10/9/13, at 36. Appellant

told the officers that he “had just found the gun in a lot.”    Id.   Upon the

officers checking NCIC, they confirmed that Appellant did not have a permit

to carry the firearm. Id.

      Thus, evidence of record establishes that, given the totality of the

circumstances, the detaining officers had a particularized and objective basis

for suspecting Appellant was involved in criminal activity.    Based on their

experience, the officers knew the area in which Appellant was walking to be

a high crime area where shootings were not uncommon.            In fact, when

officers observed Appellant, they were transporting an individual who had




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just been involved in an unrelated shooting approximately two-to-three

blocks from where Appellant was walking.     Based also on their experience

was their suspicion that Appellant may be carrying a gun, due to Appellant’s

behavior of grabbing an object at his waistband and “blading” his arm

against his side. Accordingly, the officers had reasonable suspicion to stop

Appellant and further investigate whether he possessed a weapon that he

did not have a permit to carry.

      Upon stopping their vehicle near Appellant, the officers exited the

vehicle.   The testimony reflects that as soon as the officers stopped the

vehicle, Appellant “froze” on the sidewalk of his own accord. Neither officer

directed Appellant to “stop,” drew their weapons, or tried to restrict

Appellant’s movement.       The officers were approaching Appellant for

purposes of investigating whether he had a gun.      Thus, we cannot agree

with Appellant’s argument that he was “seized” at that point. See Cooper,

994 A.2d at 592 (holding that a seizure does not occur simply because a

police officer approaches an individual with the intention of asking that

individual questions).

      Furthermore, Officer Bellon testified that simultaneously with his

stepping onto the sidewalk to approach Appellant, he saw that Appellant

indeed had a gun tucked in his waistband.      At that point, Officer Bellon

alerted his partner that Appellant had a gun, and the officers moved in to




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secure Appellant and the gun.    The officers were justified in obtaining the

gun during this investigative stop pursuant to the protections of Terry.

Simmons, 17 A.3d at 403.

     Furthermore, after the officers had secured the gun, Appellant stated

that he did not have a permit for the weapon. At that point, the officers had

probable cause to arrest Appellant for the VUFA violations.

     Thus, contrary to Appellant’s claims, the officers did not unlawfully

stop or seize Appellant. The gun was not unlawfully obtained and need not

be suppressed as fruit of the poisonous tree.     Accordingly, the trial court

properly denied Appellant’s motion to suppress the weapon that the officers

retrieved from Appellant.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2014




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