J-S22040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MUAAWIYA MUHAMMAD                          :
                                               :
                       Appellant               :      No. 1647 EDA 2017


             Appeal from the Judgment of Sentence April 12, 2017
              in the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0004256-2015


BEFORE:      BENDER, P.J.E., STABILE, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 21, 2018

        Appellant, Muaawiya Muhammad, appeals from the judgment of

sentence imposed on April 12, 2017, following his jury trial conviction of

persons not to possess a firearm, and firearms not to be carried without a

license.1 Specifically, he challenges the trial court’s denial of his motion to

suppress the firearm, and the court’s admission of testimony of one of the

officers on scene. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s November 21, 2017 opinion.

On June 14, 2015,2 at approximately 12:15 a.m., Chester City Police Officer
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1   18 Pa.C.S.A. §§ 6105 and 6106, respectively.

2 Some documents in the certified record denote the incident date as June 15,
2015. However, the transcribed notes of testimony from trial, and the police
criminal complaint both state June 14, 2015, therefore, we use that date.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S22040-18



Patrick Flynn observed trash being thrown out of the driver’s side rear window

of a white Chevrolet Lumina in violation of 18 Pa.C.S.A. § 6501, which

prohibits discarding rubbish. (See N.T. Suppression Hearing, 7/06/16, at 14,

16; N.T. Trial, 11/03/16, at 29, 32). Officer Flynn activated his flashing lights

and siren and attempted to stop the vehicle.       Instead of pulling over, the

vehicle accelerated through a red light, made a right turn, and approached a

park. All four doors of the vehicle opened, and while it was still coming to a

stop all four occupants got out of the car and ran in different directions. (See

N.T. Suppression Hearing, at 17-20). Officer Flynn chased an individual, later

identified as Laron Chandler, who exited from the passenger side rear door of

the vehicle. (See id. at 22).

      Officer Arthur Grenier, also of the Chester Police Department, heard

Officer Flynn make a radio call about the stop, and responded to it. He saw

the vehicle come to a stop, and the occupants run, observing Appellant and

one other occupant run toward him, both clutching their waistbands. (See id.

at 40-41).    Suspecting that Appellant might be holding a firearm, Officer

Grenier ordered him to stop. After Appellant did not respond, Officer Grenier

deployed a Taser.     Appellant continued running and Officer Grenier gave

chase. Soon thereafter, Appellant tripped on a curb and fell to the ground.

As he was falling, he pulled a firearm from his waistband, which firearm fell

from his right hand, and slid across the asphalt. (See id. at 45, 48). Appellant

got up from where he fell and continued running.            He was eventually

apprehended about a block and a half away; once he was secure, Officer

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Grenier returned to where the firearm landed and retrieved it. (See id. at 48-

49).

        Appellant was arrested and charged with felon in possession of a

firearm, firearms not to be carried without a license, resisting arrest,3

tampering with evidence,4 and disorderly conduct.5                (See Information,

8/12/15, at 1-2). On September 11, 2015, Appellant filed an omnibus pre-

trial motion seeking, among other things, to suppress evidence of the handgun

recovered during pursuit.          (See Omnibus Pre-Trial Motion, 9/11/15, at

unnumbered pages 2-3). The trial court conducted a suppression hearing on

July 6, 2016.       At the conclusion of the hearing, the court denied the

suppression motion, concluding that “Officer Grenier acquired probable cause

when he saw [Appellant] fleeing the car and with [Appellant] holding his

waistband in the way that he did.          As he testified, the probability that there

was something there that [Appellant] was trying to protect from falling or

concealing was great.” (N.T. Suppression Hearing, at 73-74).

        A one-day jury trial commenced on November 3, 2016. At trial, the

Commonwealth offered the testimony of Officer Flynn who described the initial

summary code violation for discarding rubbish, and ensuing chase. The trial

court overruled Appellant’s objection, and permitted Officer Flynn to describe

____________________________________________


3   18 Pa.C.S.A. § 5104.

4   18 Pa.C.S.A. § 4901(1).

5   18 Pa.C.S.A. § 5503(b).

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the incident. Officer Flynn testified that after he attempted to pull over the

vehicle it fled and eventually drove into a park wherein all four car doors

opened and the occupants began to flee. (See N.T. Trial, at 42-43). He stated

that

       The back right passenger had a black and red hoodie on and he
       was almost right in front of me when I got out of the car. As I got
       out, I saw him and when I looked at him, he started pulling a gun
       out of his waistband so I chased him. So we went running this
       way, up this alley. . . .

(Id. at 43). Officer Grenier also testified, consistent with his testimony at the

suppression hearing, that he chased and apprehended Appellant, who fled

from the drivers’ side rear of the vehicle.

       After the Commonwealth completed its case in chief, the trial court

granted Appellant’s motion for a judgment of acquittal on the charges of

tampering with evidence and resisting arrest.           (See id. at 165-68).

Thereafter, the jury found Appellant guilty of person not to possess a firearm,

and firearms not to be carried without a license. (See id. at 208; Verdict

Sheet, 11/03/16).

       On April 12, 2017, the trial court sentenced Appellant to not less than

sixty, nor more than 120 months of incarceration for possession of firearm

prohibited, and imposed a concurrent sentence of not less than forty-two, nor

more than eighty-four months of incarceration for firearms not to be carried

without a license. Appellant filed a post-sentence motion on April 21, 2017,




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which the trial court denied on April 25, 2017. Appellant filed a timely notice

of appeal on May 22, 2017.6

       Appellant raises two questions on appeal:

       A. Whether the [h]onorable [t]rial [c]ourt committed [an] error of
       law and abuse of its discretion, and denied Appellant his rights
       under the Fourth, Fifth, Sixth and Fourteenth Amendments to the
       United States Constitution and Article 1 Sections 8 and 9 of the
       Pennsylvania Constitution when it denied Appellant’s pre-trial
       motion to suppress the firearm recovered by police during foot
       pursuit of the Appellant, where the pursuit by police constituted a
       seizure of the Appellant, and where the pursuit was undertaken
       without probable cause, reasonable suspicion or any other lawful
       justification whatsoever[?]

       B. Whether the [h]onorable [t]rial [c]ourt committed [an] error of
       law and abuse of its discretion in admitting into evidence at trial,
       testimony by police that another person, one Laron Chandler, ran
       from the automobile at the same time as the Appellant, that
       Chandler was also pursued by police and that Chandler discarded
       a firearm during the pursuit, where Appellant was not charged
       with conspiring with Chandler to possess either the handgun
       Appellant had or the one that Chandler had, so that evidence that
       Chandler discarded a handgun was irrelevant and therefore
       inadmissible[?] . . .

(Appellant’s Brief, at 4-5) (some argument omitted).

       In his first issue, Appellant claims that the trial court erred when it

denied his motion to suppress the firearm he dropped while fleeing. (See id.

at 13-23).       Specifically, Appellant claims that Officer Grenier lacked

reasonable suspicion that he was engaging in criminal activity, and therefore,

the chase constituted an unconstitutional seizure. (See id.). We disagree.

____________________________________________


6 Pursuant to the trial court’s order, Appellant filed a concise statement of
errors complained of on appeal on July 3, 2017. The trial court entered its
opinion on November 21, 2017. See Pa.R.A.P. 1925.

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            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. Where the record supports
      the factual findings of the suppression court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error. However, where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s conclusions of law are not
      binding on an appellate court, whose duty it is to determine if the
      suppression court properly applied the law to the facts.

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

appeal denied, 990 A.2d 727 (Pa. 2010) (citations and quotation marks

omitted).

      It is well-settled that

             A police officer may detain an individual in order to conduct
      an investigation if that officer reasonably suspects that the
      individual is engaging in criminal conduct. Commonwealth v.
      Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). “This standard,
      less stringent than probable cause, is commonly known as
      reasonable suspicion.” Id. In order to determine whether the
      police officer had reasonable suspicion, the totality of the
      circumstances must be considered. [See] In re D.M., 566 Pa.
      445, 781 A.2d 1161, 1163 (2001). In making this determination,
      we must give “due weight to the specific reasonable inferences
      the police officer is entitled to draw from the facts in light of his
      experience.” Cook, 735 A.2d at 676 (quoting Terry v. Ohio, 392
      U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). 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.” Cook, 735 A.2d at 676.

Id.

      “Flight by the suspect can be considered suspicious activity, but flight

alone does not give rise to reasonable suspicion.”         Commonwealth v.

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Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010), appeal denied, 17 A.3d

1254 (Pa. 2011) (citation omitted).     However, “nervous, evasive behavior

such as flight is a pertinent factor in determining reasonable suspicion.”

Commonwealth v. Freeman, 757 A.2d 903, 908 (Pa. 2000) (citation

omitted). Additionally, a suspect grabbing his waistband, a movement that

police know is often associated with hiding a weapon, is another relevant

factor in determining reasonable suspicion.       See Foglia, supra at 361.

Furthermore, “a combination of circumstances, none of which taken alone

would justify a stop, may be sufficient to achieve a reasonable suspicion.”

Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa. Super. 1998), appeal

denied,     737   A.2d   741   (Pa.   1999)   (citation   omitted);   see   also

Commonwealth v. Moore, 446 A.2d 960, 962 (Pa. Super. 1982) (“Though

flight alone will not justify a stop, a combination of circumstances, none of

which taken alone would justify a stop, may be sufficient.”) (citations

omitted).

      In the instant case, the evidence at the suppression hearing

demonstrated that Appellant fled from the police, while holding his waistband,

after police observed him throwing trash out the drivers’ side rear window of

the automobile, in violation of 18 Pa.C.S.A. § 6501. Given the totality of these

circumstances, and considering the specific reasonable inferences made by

the police at the time, we conclude that reasonable suspicion existed to detain

Appellant. See Foglia, supra at 360; Riley, supra at 1135. Appellant’s first

issue does not merit relief.

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      In his second issue, Appellant claims that the trial court erred when it

denied his motion in limine and admitted evidence that another occupant of

the vehicle, Laron Chandler, was in possession of and discarded a handgun.

(See Appellant’s Brief, at 23-27). He claims that the evidence was irrelevant

to the charges against him, that it did little to show the complete story of the

case, and that its probative value was outweighed by the danger of unfair

prejudice. (See id.). Thus, he argues the trial court abused its discretion.

We disagree.

      Our standard of review is well settled.

             Admission of evidence is within the sound discretion of the
      trial court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. An abuse of discretion is not
      merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will or
      partiality, as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357–58 (Pa. Super. 2015) (en

banc), appeal denied, 128 A.3d 220 (Pa. 2015) (citations omitted).

      “Evidence is relevant if . . . it has any tendency to make a fact more or

less probable than it would be without the evidence [ ] and . . . the fact is of

consequence in determining the action.” Pa.R.E. 401(a)-(b). “All relevant

evidence is admissible, except as otherwise provided by law. Evidence that is

not relevant is not admissible.” Pa.R.E. 402. “The court may exclude relevant

evidence if its probative value is outweighed by a danger of . . . unfair

prejudice[.]”   Pa.R.E. 403. “[A]ll evidence in a criminal proceeding is



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prejudicial to the defendant, and . . . relevant evidence is to be excluded only

when it is so prejudicial that it may inflame the jury to make a decision based

upon something other than the legal propositions relevant to the case.”

Commonwealth v. Colon, 846 A.2d 747, 753 (Pa. Super. 2004), appeal

denied, 870 A.2d 320 (Pa. 2005) (citation and internal quotation marks

omitted).

      Initially, we note that Rule 404(b) prohibits admission of other crimes

or acts to show a defendant’s bad character. Here, in contrast, the evidence

in question regarded the crimes or acts of Mr. Chandler. See Pa.R.E. 404(b);

Commonwealth v. Johnson, 160 A.3d 127, 146 (Pa. 2017), cert. denied,

138 S. Ct. 508 (2017) (concluding that Rule 404(b) was not implicated where

the subject testimony was “not evidence of any particular ‘crime, wrong or

act’ by [Appellant].”).   Thus, we consider Appellant’s arguments about the

relevance and unfair prejudice concerning the evidence of Mr. Chandler’s

crimes, not whether admission of the testimony complied with Pa.R.E. 404(b).

      Appellant claims that Mr. Chandler’s fleeing from the vehicle while

possessing a handgun “bore no relationship to the charges against [him,]” and

therefore should not have been admissible. (Appellant’s Brief, at 26; see id.

at 25-26). He contends that because he was not charged as an accomplice to

Mr. Chandler, evidence that he possessed a handgun was irrelevant. (See id.

at 26). We disagree.

      Rule 401 of the Pennsylvania Rules of Evidence provides a broad
      definition of relevant evidence, as evidence is relevant if it logically
      tends to establish a material fact in the case, tends to make a fact

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      at issue more or less probable, or supports a reasonable inference
      or presumption regarding the existence of a material fact. Even
      evidence that merely advances an inference of a material fact may
      be admissible. . . .

Johnson, supra at 146 (citations and quotation marks omitted).

      Here, Officer Flynn’s statement about chasing the back right passenger

(Chandler) after the occupants fled into the park, was relevant to the jury’s

understanding of the events that took place after the occupants of the vehicle

fled. The fact that Officer Flynn saw that the back right passenger had a gun

was relevant to explaining why he decided to chase that passenger as opposed

to the other occupants of the vehicle. (See N.T. Trial, at 46). Additionally,

evidence of the conduct of one of the other passengers in the same vehicle is

part of the same sequence of events and, therefore, forms part of the natural

development of facts. Thus, we conclude that Officer Flynn’s statement was

relevant.   See Commonwealth v. Cole, 135 A.3d 191, 196 (Pa. Super.

2016), appeal denied, 145 A.3d 162 (Pa. 2016) (finding evidence relevant

when it increased jury’s understanding of events).

      Appellant next claims that the statement should not have been admitted

because its probative value was outweighed by its undue prejudice in violation

of Pa.R.E. 403.    Specifically, he contends that the “evidence tended to

demonstrate some other plan on the part of all the occupants of the car, a

matter that was not of concern to the jury,” and that “[t]he jury could easily

infer[] guilt on the part of Appellant based on the possession of a handgun by

one of the other occupants of the vehicle.”       (Appellant’s Brief, at 27).

Appellant’s argument does not merit relief.

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      Evidence is not unfairly prejudicial simply because it harms a

defendant’s case, rather Rule 403’s bar “is limited to evidence so prejudicial

that it would inflame the jury to make a decision based upon something other

than the legal propositions relevant to the case.” Commonwealth v. Foley,

38 A.3d 882, 891 (Pa. Super. 2012), appeal denied, 60 A.3d 535 (Pa. 2013)

(citation omitted). While evidence that Mr. Chandler possessed a gun could

possibly support an inference that Mr. Chandler committed a crime, there is

no reason to believe that it would improperly inflame the jury to find Appellant

guilty. Thus, we conclude that the trial court did not abuse its discretion by

admitting the evidence. See Tyson, supra at 357-58.

      Moreover, we would conclude that the admission of this evidence, if

error, would constitute harmless error. The harmless error doctrine “reflects

the reality that the accused is entitled to a fair trial, not a perfect trial.”

Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014), cert. denied,

135 S. Ct. 164 (2014) (citation omitted). Harmless error exists if the error

did not prejudice the defendant (or prejudice was de minimis), if the evidence

was merely cumulative of other untainted evidence, or if the properly admitted

evidence was so overwhelming and the prejudicial effect of error so

insignificant that the error could not have contributed to the verdict. See id.

Here, the properly admitted evidence of Appellant himself being in possession

of a firearm overwhelmingly established his guilt of persons not to possess a

firearm and firearms not to be carried without a license, as to render any error




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in the admission of evidence that Chandler possessed a firearm insignificant

by comparison and therefore harmless. See id.

      Thus, we conclude that Officer Flynn’s statement was relevant to the

jury’s understanding of events, and did not cause unfair prejudice. Therefore,

we discern no abuse of the trial court’s discretion in admitting Officer Flynn’s

testimony. See Tyson, supra at 357-58. Appellant’s second issue does not

merit relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




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