J-S60026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KENYATTA ANDERSON

                            Appellant                No. 2476 EDA 2014


             Appeal from the Judgment of Sentence July 10, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003290-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                      FILED DECEMBER 08, 2015

        Kenyatta Anderson appeals from the judgment of sentence imposed by

the Court of Common Pleas of Philadelphia County following his conviction

for possession of a firearm,1 obliteration of firearm identification,2 firearms

not to be carried without a license,3 possession of marijuana,4 and carrying

firearms in public in Philadelphia.5 Upon review, we vacate the sentence and

remand for resentencing.

____________________________________________


1
    18 Pa.C.S. § 6105(a)(1).
2
    18 Pa.C.S. § 6117(a).
3
    18 Pa.C.S. § 6106(a)(1).
4
    35 P.S. § 780-113(a)(31).
5
    18 Pa.C.S. § 6108.
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      On February 24, 2013, at approximately 2:40 a.m., Philadelphia Police

Corporal Patrick Delaney was driving in a marked police when he heard

gunshots outside the Mezzanine Club, near Germantown and Chelten

Avenues.      As he arrived on the scene, Corporal Delaney saw Anderson

running across the street and hailing a cab.

      Corporal Delaney approached the cab, and asked Anderson if he heard

the gunshots.     Anderson immediately took off running.          As Anderson ran

away, Corporal Delaney noticed that he continuously held his waistband.

Officer Jamar Leary, who was backing up Corporal Delaney, was able to stop

Anderson. Anderson fell to the ground, and Officer Leary recovered a loaded

gun, marijuana and $1,008.00 in cash.

      On March 21. 2014, at the conclusion of argument on Anderson’s

motion to suppress, the court held a stipulated trial, and convicted Anderson

of the aforementioned offenses.

      On July 10, 2014, the trial court sentenced Anderson to five to ten

years’ imprisonment for persons not to possess firearms, and a consecutive

sentence of one day to ten years’ imprisonment for altering or obliterating

marks of identification.     The court imposed concurrent sentences for the

remaining     firearms   violations   and    no   further   penalty   for   marijuana

possession.

      Anderson filed a post-sentence motion on July 17, 2014, which the

court denied on August 14, 2014.            This timely appeal followed, in which

Anderson presents the following issues for our review:

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      1. Did the trial court abuse its discretion by denying [Anderson’s]
      motion to suppress where, as a matter of law, the trial court’s
      factual conclusions did not support the conclusion that there was
      reasonable suspicion to stop [Anderson]?

      2. Was the evidence insufficient as a matter of law to support
      [Anderson’s] conviction for obliteration of firearm identification?

      3. [Would] the appellate court[’s] remand [of] the matter so that
      the trial court can resentence [Anderson] . . . deprive
      [Anderson] of his Fourteenth Amendment due process rights?

Brief of Appellant, at 4.

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

failed to suppress the evidence seized from him by the police. Our standard

of review for the denial of a suppression motion is as follows:

      [W]e are limited to determining whether the factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. We may consider the
      evidence of the witnesses offered by the prosecution, as verdict
      winner, and only so much of the defense evidence that remains
      uncontradicted when read in the context of the record as a
      whole. We are bound by facts supported by the record and may
      reverse only if the legal conclusions reached by the court below
      were erroneous.

Commonwealth v. McAliley, 919 A.2d 272, 275-76 (Pa. Super. 2007)

(citation omitted).

      Anderson contends that the court erred in denying his suppression

motion because the officers did not have reasonable suspicion to stop him.

      A police officer may briefly stop a suspect for an investigatory

detention if the officer has a reasonable suspicion that criminal activity is

afoot. Commonwealth v. Martinez, 588 A.2d 513, 514 (Pa. Super. 1991).

Likewise, an officer may stop a suspect where the officer reasonably believes


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that the suspect is “armed and presently dangerous to the officer or to

others.” Commonwealth v. Grahame, 7 A.3d 810, 814 (Pa. 2010).

      To establish reasonable suspicion, the officer “must be able to

articulate something more than an inchoate and unparticularized suspicion

or hunch.” Id. at 768-69 (quoting U.S. v. Sokolow, 490 U.S. 1, 2 (1989)).

The officer must rely on specific and articulable facts that warrant a belief

that criminal activity is afoot. Commonwealth v. Martinez, 588 A.2d 513,

514 (Pa. Super. 1991).

      In assessing whether an officer had reasonable suspicion as to justify

an   investigatory   detention,   we   must   consider   the   totality   of   the

circumstances.   Commonwealth v. Walls, 53 A.3d 889, 893 (Pa. Super.

2012).    Mere flight is not enough to constitute reasonable suspicion.

Martinez, supra at 514 (Pa. Super. 1991).          However, fleeing from an

officer may constitute the basis for reasonable suspicion in certain instances,

as a “combination of innocent facts, when taken together, may warrant

further investigation by the police officer.” Commonwealth v. Carter, 105

A.3d 765, 772 (Pa. Super. 2014). Additionally, the court must afford weight

to an officer’s perception of the circumstances in light of the officer’s

experience.   Commonwealth v. Carter, 105 A.3d 765, 773 (Pa. Super.

2014)

      Corporal Delaney testified that the Mezzanine Club closes at 3:00 a.m.

and that police were “in the area for any problems that might arise, fights,

drunken, disorderly people with guns. The area is known for crime around

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the time of the let out of the club.” N.T. Suppression Hearing/Trial, 3/21/14,

at 10. He further testified that in the two years that he worked in the area

of the club, he recovered at least five firearms while making arrests. Most of

the firearms were found in the arrestees’ waistbands. Id at 17-18.

       In In re D.M., 781 A.2d 1161 (Pa. 2001), our Supreme Court, relying

on Illinois v. Wardlow, 528 U.S. 119 (2000), held that “it is evident that

unprovoked flight in a high crime area is sufficient to create a reasonable

suspicion to justify a Terry6 stop under the Fourth Amendment.”         In re

D.M., at 1164.

       Based on the totality of the circumstances, see Walls, supra, we

conclude that in light of the evidence regarding the high crime area,

gunshots and Anderson’s flight after grabbing his waistband, the trial court

did not err in denying Anderson’s motion to suppress.

       In his second issue, Anderson argues that the evidence was insufficient

to support his conviction for obliteration of firearm identification.      In

reviewing a sufficiency of the evidence claim, we must determine whether

there is sufficient evidence to establish each element of the crime beyond a

reasonable doubt. Commonwealth v. Vanderlin, 580 A.2d 820, 827 (Pa.

Super. 1990). In doing so, an appellate court views the evidence admitted at



____________________________________________


6
 Terry v. Ohio, 392 U.S. 1 (1968) (police may stop and frisk individual
where reasonable suspicion exists that criminal activity is afoot).



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trial and all reasonable inferences drawn therefrom, in the light most

favorable to the verdict winner. Id.

        To sustain a conviction under section 6117, there must be sufficient

evidence    to   prove   beyond   a    reasonable   doubt   that   the   defendant

“change[d], alter[ed], remove[ed], or obliterate[ed] the manufacturer’s

number integral to the frame or receiver of any firearm.” See 18 Pa.C.S. §

6117.    Possession of a firearm with an obliterated serial number does not

prove that the defendant in possession of such weapon is the individual who

obliterated the serial number.        Likewise, a defendant’s attempt to flee or

discard the firearm is not sufficient to establish that the defendant altered

the serial number. Commonwealth v. Taggart, 997 A.2d 1189, 1200 (Pa.

Super. 2010).

        The gun recovered from Anderson had an obliterated serial number.

However, at trial, the Commonwealth did not introduce evidence to show

when the obliteration occurred, when Anderson came into possession of the

firearm, or whether Anderson had the technical capabilities to obliterate the

gun’s serial number.     At most, the Commonwealth showed that Anderson

was in possession of an obliterated firearm and that he attempted to flee

from the police.     Thus, the evidence was insufficient to establish that




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Anderson obliterated the serial number on the firearm, and accordingly, we

vacate his conviction for this offense.7

       It is well settled that “if our disposition upsets the overall sentencing

scheme of the trial court, we must remand so that the court can restructure

its sentence plan.”        Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.

Super. 2006) (citation omitted). “If a trial court errs in its sentence on one

count in a multi-count case, then all sentences for all counts will be vacated

so   that   the    court   can    restructure      its   entire   sentencing   scheme.”

Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999).

       Anticipating that this Court would remand for resentencing, Anderson

claims that remanding the matter to the trial court will violate his Fourteenth

Amendment due process rights.                  Therefore, he asks us to vacate his

conviction for obliterating the serial number on the firearm without

remanding for further action by the trial court.                  Anderson’s position is

contrary to the principles set forth in Thur, supra and Bartrug, supra. As

recognized by the U.S. Supreme Court, “[t]he Constitution does not require

that sentencing should be a game in which a wrong move by the judge

means immunity for the prisoner.”               Commonwealth v. Vanderlin, 580

A.2d 820, 830 (Pa. Super. 1990) (quoting Bozza v. U.S., 330 U.S. 160, 166

(1947)).

____________________________________________


7
  In its Pa.R.A.P. 1925(a) opinion, the trial court recognizes that it erred by
finding Anderson guilty of the felony of obliterating marks of identification.



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  Judgment of sentence vacated. Case remanded for resentencing.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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