J-S25025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

MARVIN WALKER

                            Appellant                No. 875 EDA 2015


           Appeal from the Judgment of Sentence February 23, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002438-2012


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY RANSOM, J.:                             FILED JUNE 13, 2017

       Appellant, Marvin Walker, appeals from the judgment of sentence of

six to twelve years of incarceration, imposed February 23, 2015, following a

bench trial resulting in his conviction for violations of the Uniform Firearms

Act. We affirm.1

       We adopt the following statement of facts from the suppression court

opinion, which in turn is supported by the record.    See Suppression Court

Opinion (SCO), 8/1/16, at 1-3.

       On November 3, 2011, Police Officers Kyle Morris, Christopher Hyk,

and Kelly Robbins were on patrol in the 2700 block of North 8th Street in

____________________________________________


1
  See 18 Pa.C.S. §§ 6105, 6106, and 6108 respectively. Appellant was also
charged with possession of marijuana, 35 P.S. § 780-113(a)(16), although
the charge was nolle prossed.
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Philadelphia, Pennsylvania, a high crime area with frequent drug sales.

Officer Morris is a narcotics officer with over seven years on the force.

Officer Morris observed Appellant transferring small objects in a “pinching”

motion to another individual, who gave Appellant money in exchange.

Believing this to be a drug sale, Officer Morris stopped the police car to

investigate. Officer Morris noticed Appellant had his hand on his waistband.

      When Appellant looked up and noticed the officer’s approach, he began

to run away.   Officer Morris yelled for Appellant to stop and proceeded to

chase Appellant for approximately three blocks. During the chase, Appellant

reached into his waistband and discarded a metal object.         Appellant was

arrested by Officer Hyk. A search incident to arrest resulted in the recovery

of $429.00 and three bags of marijuana from Appellant’s person, and the

metal object, a discarded firearm, was recovered from the ground by Officer

Robbins.

      Prior to trial, Appellant litigated a suppression motion, arguing that the

officers had not observed a crime and that the chase and subsequent search

were not supported by reasonable suspicion. Appellant argued that Officer

Morris, in a preliminary hearing, had stated that Appellant ran only after

being told to stop.    However, at the suppression hearing, Officer Morris

testified consistently that Appellant had fled prior to being told to stop. The

suppression court denied Appellant’s motion.

      The matter proceeded to a bench trial in September 2014. Appellant

was convicted of the above-mentioned charges.         Appellant filed a motion

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seeking reconsideration of the verdict and the denial of the suppression

motion, which the court denied.     In February 2015, the court sentenced

Appellant to an aggregate sentence of six to twelve years of incarceration.

      On appeal, Appellant raises a single issue for our review, namely, that

the court erred in failing to grant his motion to suppress physical evidence.

See Appellant’s Brief at 4. Appellant argues that based on the totality of the

circumstances, the police lacked reasonable suspicion and probable cause to

search Appellant. See Appellant’s Brief at 9. He contends that as a result,

the physical evidence should have been suppressed as illegally obtained.

Id. at 12.

      Our standard of review for an appeal denying a motion to suppress is

well settled.

      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 courts
      below are subject to our plenary review.




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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted).

      Appellant contends that the search was not supported by reasonable

suspicion or probable cause. We note, initially, that

      [t]here are three types of encounters between law enforcement
      officials and private citizens. A “mere encounter” need not be
      supported by any level of suspicion but carries no official
      compulsion to stop or respond. An “investigative detention”
      must be supported by reasonable suspicion and subjects the
      suspect to a stop and a period of detention, but it does not have
      the coercive conditions that would constitute an arrest. The
      courts determine whether reasonable suspicion exists by
      examining the totality of the circumstances.        An arrest, or
      “custodial detention,” must be supported by probable cause.

In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).

      Here, the initial contact between Appellant and the police was a mere

encounter which need not be supported by any level of suspicion.           See

Commonwealth v. Lyles, 97 A.3d 298, 303 (Pa. 2014) (noting that a

seizure does not occur where officers merely approach a person in public

and question the individual or request to see identification). Officer Morris

stopped the car, got out of the car, and Appellant fled, and the suppression

court made a factual finding to this effect, which is supported by the record.

See Jones, 988 A.2d at 654 (noting that where the suppression court’s

factual findings are supported by the record, appellate courts are bound by

those findings).

      Regardless, the record supports the contention that the officers had

both reasonable suspicion and probable cause to stop Appellant.           Here,

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police officers with extensive narcotics experience observed Appellant

conduct a drug transaction in a high crime area specifically known for drug

transactions. See Commonwealth v. Thompson, 985 A.2d 928, 935 (Pa.

2009) (noting that a police officer’s experience may be fairly regarded as a

relevant factor in determining probable cause).

      Further, prior to any questioning or interactions by the officers,

Appellant fled. It is well-settled that unprovoked flight in a high crime area

is sufficient to create a reasonable suspicion to justify an investigatory stop.

See In the Interest of D.M., 781 A.2d 1161, 1163–64 (Pa. 2001); see

also Commonwealth v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012)

(“nervous, evasive behavior and headlong flight all provoke suspicion of

criminal   behavior   in   the   context   of   response   to   police   presence”);

Commonwealth v. McCoy, 154 A.3d 813, 819 (Pa. Super. 2017) (noting

that Appellant’s evasive and suspicious behavior in a high crime area, his

unprovoked flight, and officers’ training and experience, provided requisite

reasonable suspicion). All evidence recovered from Appellant was the result

of a search incident to a lawful arrest.        See Commonwealth v. Ingram,

814 A.2d 264, 272 (Pa. 2002) (noting that a warrantless search incident to a

lawful arrest is reasonable, and no justification other than that required for

the arrest itself is necessary to conduct such a search).

      Accordingly, the suppression court properly denied Appellant’s motion

to suppress. Jones, 988 A.2d at 654.


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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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