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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMAL T. ADAMS                           :
                                          :
                    Appellant             :   No. 3425 EDA 2018

      Appeal from the Judgment of Sentence Entered October 26, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000043-2018


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 13, 2020

      Jamal Adams appeals from his October 26, 2018 judgment of sentence

of five to ten years of incarceration, and a concurrent seven-year term of

probation, imposed following his convictions of possession of a firearm

prohibited, carrying a firearm without a license, and carrying a firearm on a

public street in Philadelphia. After thorough review, we affirm.

      The trial court summarized the facts as followed:

             On December 17, 2017, at approximately 3:55 p.m.,
      Philadelphia Police Officer John Cole and his partner were directed
      to the intersection of Frankford Avenue and Orleans Street, a high
      crime area, to investigate a report of a man with a gun and shots
      fired. (N.T., 8/30/18; at 8-10). The report described the suspect
      as a black male with tattoos on his face, wearing a green jacket
      and gray sweatpants. Id. at 10, 18. Upon arrival, Officer Cole,
      who estimated that he had made twenty arrests for guns, was
      informed by several neighbors that they heard gunfire. Id. at 11.
      In response thereto, Officer Cole and his partner began driving
      around looking for a male matching the description in the radio
      call. Id. at 8-10.
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              While driving north on the 2900 block of Emerald Street
       towards Orleans Street, Officer Cole saw a male (Appellant herein)
       outside a convenience store whose clothing matched the
       description of the suspect. Id. at 11-12, 15-16, 26. Officer Cole
       estimated that less than two minutes elapsed between the radio
       call and his observations of Appellant who was standing fifty feet
       away from him at the time. Id. at 12-13.

              As the officers approached, Appellant looked in the officers’
       direction, stood up, grabbed his waistband, and entered a
       convenience store. Id. at 12-13, 19. The officers entered the
       store, which was occupied only by Appellant and a store clerk, and
       ordered Appellant, who was sitting down, to stand up. Id. at 13.
       Appellant complied with the request and, as he did so, Officer Cole
       noted that Appellant’[s] gait was “weird” as he stood up
       hesitantly. Id. at 13. The officers asked Appellant to walk outside
       [to speak with them] and Officer Cole observed that there were
       bulges in Appellant’s baggy coat. Id. at 13. Upon observing the
       bulges and given the nature of the radio call (a man with a gun),
       Officer Cole frisked Appellant and felt an object in Appellant’s
       waistband that he immediately recognized as a handgun based on
       his training and experience with firearms. Id. at 14. Officer Cole
       recovered the firearm and placed Appellant in handcuffs. Id. at
       14.

               After Appellant was placed under arrest, Officer Cole took
       biographical information from Appellant. Id. at 16-17. Appellant
       initially gave the officer two false names[1] before telling the officer
       his real name. Id. at 17.

             The gun seized by Officer Cole was a Taurus .9 millimeter
       handgun loaded with five live rounds. Id. at 48. The gun was
       tested and was operable. Id. at 48. Finally, Appellant did not
       have a license to possess a firearm. Id. at 48.

Trial Court Opinion, 4/8/19, at 2-3.




____________________________________________


1The notes of testimony from the suppression hearing indicate that Appellant
supplied one false name as opposed to two. (N.T. Suppression Hearing,
8/30/18, at 17).

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         Appellant was arrested and charged with several firearms offenses. He

filed a motion to suppress the handgun on the ground that Officer Cole did not

have reasonable suspicion for the investigative stop and the ensuing frisk.

Following a hearing, the court denied suppression. A waiver trial immediately

proceeded. At its conclusion, the court convicted Appellant of all charges.

         Appellant was sentenced on October 26, 2018, and he timely appealed.

Appellant complied with the court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and the trial court issued its

opinion pursuant to Pa.R.A.P. 1925(a). Appellant raises two issues on appeal:

   I.      Did the trial court err when it denied [Appellant’s] pre-trial
           motion to suppress physical evidence where:

              The police subjected [A]ppellant to an investigative
               detention without reasonable suspicion because the initial
               information provided to police was anonymous, [A]ppellant
               did not match the description provided by the anonymous
               tipster, and the observations made by police did not provide
               reasonable suspicion to believe that criminal activity was
               afoot which [A]ppellant was involved in?

   II.     Did the trial court err when it denied [Appellant’s] pre-trial
           motion to suppress physical evidence where:

              The police exceeded the permissible scope of the interaction
               permitted during an investigative stop when they frisked
               [A]ppellant because the facts known to the officer at the
               time the frisk occurred were not sufficient to establish that
               [A]ppellant was currently armed and dangerous?

Appellant’s brief at 5.

         Initially, we delineate our standard of review of challenges to a

suppression court’s ruling:


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             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 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.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015) (internal

citations and quotation marks omitted)).

       Appellant challenges both the propriety of the original stop and the

ensuing pat down for weapons.2                 Without analyzing the nature of the

encounter between Appellant and the police, the parties appear to agree that

the interaction herein constituted an investigative detention that required

reasonable suspicion. An investigative detention “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.” Commonwealth v. Ellis,

662 A.2d 1043, 1047 (Pa. 1995).



____________________________________________


2  Our review of the suppression transcript indicates that Appellant initially
conceded at the suppression hearing that the stop was legal, and challenged
only the frisk. N.T., 8/30/18, at 30. Appellant’s counsel asked the court “to
find that while the stop of my client was not impermissible[,] . . . the pat-
down of him was impermissible.” Id. However, Appellant subsequently
argued that he was subjected to “a stop and frisk of his person, without the
requisite belief that he was armed and dangerous,” and based on a generic
description that did not match his appearance. Id.

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      Appellant contends that the trial court erred in concluding that Officer

Cole had reasonable suspicion to subject him to an investigative detention.

He alleges first that the officers were acting in response to an anonymous tip

that a black male with facial tattoos, wearing a green jacket and gray pants,

and carrying a firearm was involved in a gunfire incident. He maintains that

the anonymous tip did not provide reasonable suspicion to detain him as he

was not at the location of the crime, and did not match the description as he

had no facial tattoos and was not wearing sweatpants. He argues that the

officers’ additional observations, i.e., that he was sitting in front of a

convenience store in a high crime area, that he got up, grabbed his waistband,

and walked into the store as uniformed police officers approached, were not

enough to establish reasonable suspicion.

      As the trial court correctly noted, in order “[t]o establish grounds for

‘reasonable suspicion’. . . the officer must articulate specific observations

which, in conjunction with reasonable inferences derived from these

observations, led him to reasonably conclude, in light of his experience, that

criminal activity was afoot and the person he stopped was involved in that

activity.” Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.Super. 2014)

(internal citations omitted). In making that determination, the court must

consider the totality of the circumstances as seen through the officer’s eyes.

      The trial court found that “the information possessed by the police when

they encountered Appellant was sufficient to conduct an investigative


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detention.” Trial Court Opinion, 4/8/19, at 5. In support of that conclusion,

the court noted that the officers observed Appellant dressed in clothing that

matched the flash description less than two minutes after receiving the report.

When Appellant saw the officers, he immediately stood up, adjusted his

waistband, and walked into the store. The court held that these facts were

sufficient to detain Appellant for investigative purposes, citing this Court’s en

banc decision on very similar facts in Commonwealth v. Foglia, 979 A.2d

357 (Pa.Super. 2009).

      In Foglia, police officers on routine patrol at approximately 2:40 a.m.

in a high crime area received a radio broadcast reporting an anonymous tip

that there was a man standing on a particular corner, dressed in dark clothing,

and carrying a firearm. The officers arrived at that location in less than two

minutes, and extinguished the lights on their vehicle to avoid detection. They

observed two males, one of whom was clothed entirely in black, the other in

a gray suit. When the two men saw the officers, they “began walking away”

from the cruiser. Id. at 359. The man wearing black clothing, later identified

as defendant Foglia, “looked back several times” as he continued walking. Id.

The two officers stopped and exited their vehicle. Foglia “grabbed around his

waist area” and “sat on some steps behind two females.” Id. The officer

ordered Foglia to stand, informed him that they were investigating a “male

with a gun that fit his description,” and immediately patted him down. The




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officer felt the butt of a handgun in Foglia’s waistband, and retrieved it. When

Foglia admitted he did not have a permit to carry, he was arrested.

      Foglia filed a motion to suppress, which the suppression court denied,

finding reasonable suspicion for the detention.        On appeal, this Court

reaffirmed that police cannot initiate an investigative detention solely upon

“an anonymous tip that a person matching the defendant’s description in a

specified location is carrying a gun.” Id. at 360 (citing In the Interest of

D.M., 781 A.2d 1161 (Pa. 2001)).          However, we held that additional

observations of suspicious behavior, such as flight or nervous, evasive

conduct, as well as presence in a high crime area close in time to the receipt

of the tip, were relevant factors in determining whether there was reasonable

suspicion to stop and detain a person. See id. We noted further that hand

movements associated with a secreted weapon “will buttress the legitimacy

of a protective weapons search of the location where the hand movements

occurred.” Foglia, supra at 361 (citing In the Interest of O.J., 958 A.2d

561 (Pa.Super. 2008) (en banc)). Finally, we concluded that the suppression

court’s factual findings were supported by the record, and that the pat down

search of Foglia was constitutionally permitted.

      Appellant contends that Foglia is inapposite as Appellant did not match

the description in the flash. He points to his lack of facial tattoos and gray

pants that were not sweatpants. Appellant argues further that since he did

not exactly match the description from the flash report, reasonable suspicion


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would have to rest on Officer Cole’s observations alone. Appellant’s brief at

37. Appellant cites Commonwealth v. Kue, 692 A.2d 1076 (Pa. 1997), and

Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), for the proposition

that the fact that a suspect matches the description provided in an anonymous

tip alone does not supply probable cause nor meet the requisite level of

suspicion to support an investigative detention, absent other sources of

suspicion.   Appellant’s brief at 27-37.      Appellant sums up the officer’s

observations as “a man wearing a coat in the winter stand[s] up, touch[es]

his waist, and walk[s] into a store during midday business hours.” Id. He

contends that these circumstances did not provide reasonable suspicion to

detain him. Id.

      Moreover, Appellant contends he was not at the specific location

described in the police flash, but a few blocks away. Id. at 36-37, 40. He

was observed mid-afternoon as opposed to late at night.           Id.   Appellant

maintains he did not continue to walk away when the officers approached. Id.

      Finally, Appellant cites Commonwealth v. Hicks, 208 A.3d 916 (Pa.

2019), for the proposition that an officer’s belief that an individual is carrying

a weapon does not alone provide reasonable suspicion for an investigative

detention.

      The trial court found that the officers observed Appellant in close

geographical proximity within two minutes of the report of a man with a gun

and shots fired. Trial Court Opinion, 4/8/19, at 6. Appellant’s clothes matched


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the description from the anonymous source.         Id.    Appellant immediately

attempted to elude the police upon seeing them, and grabbed his waistband

in a way that Officer Cole knew from personal experience indicated the

possession of a firearm. Id. The trial court also found that the interaction

with Appellant took place in a high crime area both temporally and

geographically proximate to the reported shooting. Id. at 5-6. Thus, there

were numerous facts that provided reasonable suspicion for police to detain

Appellant. The trial court concluded that there were sufficient circumstances

corroborative of the anonymous tip to justify the investigative detention. Id.

at 6.

        We are bound by the factual findings of the trial court as they are

supported by the record and uncontroverted.               Furthermore, we find

unpersuasive Appellant’s attempt to distinguish Foglia. He cites no authority

in support of his assertion that anything short of an identical match to a

description   cannot   be   considered   in   examining    the   totality   of   the

circumstances. See Appellant’s brief at 37. This Court held to the contrary

in Commonwealth v. Walls, 53 A.3d 889, 894 (Pa.Super. 2012), concluding

that a perfect match to a description is not required; any discrepancies are

part of the totality of the circumstances.       In Walls, the fact that the

defendant’s gun was not on his hip per the flash description did not void his

match to the remainder of the description. In Commonwealth v. Ellis, 662

A.2d 1043, 1048 (Pa. 1995), our Supreme Court rejected the notion that “the


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existence of a single fact contradictory to [a] police radio broadcast required

an officer to ignore these other incriminating factors.” In that case, the Court

held that the police had reasonable suspicion to detain the appellant and his

friend even though the flash described the suspects as white or “Mexican,”

and the appellant and his companion were African-American.          Nor do our

decisions in Kue and Jackson offer support for Appellant’s position.         In

stopping Appellant, the police officers herein did not rely solely on the fact

that Appellant matched the description.

      Appellant’s reliance on Hicks is similarly misplaced. In Hicks, our High

Court rejected the per se rule enunciated in Commonwealth v. Robinson,

600 A.2d 957 (Pa.Super. 1991), that an officer’s belief that a suspect was

carrying a firearm could alone justify a finding of reasonable suspicion. The

Court, however, reaffirmed the notion that behavior indicative of the presence

of a firearm contributes to the totality of the circumstances in determining

whether there is reasonable suspicion to investigate further. In rejecting the

Robinson rule, the Supreme Court explicitly stated that the rule was

inconsistent with the constitutionally required totality of the circumstances

analysis, and clarified that it was not rejecting the idea that “the possession

of a firearm can never be suspicious. It can certainly be.” Id. at 938-39

(emphasis original).

      Herein, Appellant was not detained solely because he matched the

description provided in an anonymous tip or because police suspected he was


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carrying a firearm. He was stopped because he matched the flash description

of a man involved in gunfire, was located in close temporal and geographical

proximity to the incident, grabbed his waistband in manner suggestive of one

carrying a firearm, and took action to evade police. The record supports the

trial court’s conclusion that the totality of the circumstances provided

reasonable suspicion to detain Appellant for investigative purposes.

        Appellant’s second claim is that the trial court erred in denying his

motion to suppress as the frisk by Officer Cole was unsupported by the

requisite reasonable suspicion. Again, our standard of review is limited to

whether the suppression court’s factual findings are supported in the record

and its legal conclusions are correct. Jones, supra.

        In order to conduct a legitimate Terry3 stop and frisk, an officer must

have reasonable suspicion supporting two beliefs: first, that there is “criminal

activity afoot,” and second, that the individual subject to the investigative stop

is “armed and presently dangerous.” Commonwealth v. Guess, 53 A.3d

895, 901 (Pa.Super. 2012) (internal citations omitted). Our High Court stated

it another way in Hicks, supra:

               First, the investigatory stop must be lawful.         That
        requirement is met in an on-the-street encounter, Terry
        determined, when the police officer reasonably suspects that the
        person apprehended is committing or has committed a criminal
        offense. Second, to proceed from a stop to a frisk, the police
        officer must reasonably suspect that the person stopped is armed
        and dangerous.
____________________________________________


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

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Hicks, supra, at 921. “[T]he purpose of this limited search is . . . to allow

the officer to pursue his investigation without fear of violence.” Guess, supra

at 901 (quoting Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super.

2011)).

      The thrust of Appellant’s argument is that the Terry frisk was improper

herein as Officer Cole had no reason to believe that Appellant was both armed

and dangerous. See Appellant’s brief at 44-46. Appellant contends that since

he did not match the description offered by the police flash, Officer Cole had

no reasonable suspicion that he had committed the “violent crime” reported

in the anonymous tip or was dangerous. Id. at 45. Appellant concludes his

argument by citing to our High Court’s decision in Hicks, supra, for the

proposition that Officer Cole’s suspicion that he was carrying a firearm could

not alone have supported the frisk. Id. at 46.

      We have previously determined that the totality of the circumstances

provided reasonable suspicion to detain Appellant for further investigation of

his possible role in a violent crime involving a firearm.      Thus, the first

requirement for a valid Terry frisk, a lawful detention, was satisfied.

Furthermore, the nature of the crime being investigated supplied reason to

believe that the perpetrator was both armed and dangerous.                See

Commonwealth v. Jackson, 519 A.2d 427 (Pa.Super. 1986) (recognizing

that police may reasonably believe themselves to be in danger when the

reported crime is a violent one, where the perpetrator was reported to possess


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or have used a weapon, police observe sudden or threatening moves, or note

suspicious bulges in a suspect’s clothing). In determining whether reasonable

suspicion existed to support an officer’s belief that a suspect was armed and

dangerous, this Court stated in Commonwealth v. Mack, 953 A.2d 587, 591

(Pa.Super. 2008), that “an overt threat by the suspect or clear showing of a

weapon is not required for a frisk.” The action of a suspect reaching down to

his waistband can be a factor contributing to the totality of circumstances

forming an experienced officer’s reasonable suspicion of the possession of a

firearm. See Simmons, supra at 404.

      One of the circumstances providing reasonable suspicion to detain

Appellant was his behavior in grabbing his waistband, which indicated to police

that he had a weapon.      The officers also testified that Appellant stood up

awkwardly when the officers instructed him to keep his hands visible, get up

from his seat, and accompany them outside of the convenience store. See

N.T., 8/30/18, at 11-13. In addition, his coat contained bulges consistent with

a secreted weapon. Based on the totality of the circumstances, the trial court

concluded that the officers had reasonable suspicion to believe that Appellant

was both armed and dangerous, and that the frisk was warranted. The record

supports the trial court’s factual findings, and its legal conclusions are correct.

Hence, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/20




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