J-A01040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHID E. VICKS                            :
                                               :
                       Appellant               :   No. 1262 EDA 2017

             Appeal from the Judgment of Sentence March 22, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000722-2016


BEFORE:      LAZARUS, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                                   FILED MARCH 12, 2018

        Rashid E. Vicks appeals from the judgment of sentence imposed on

March 22, 2017, in the Court of Common Pleas of Delaware County, following

his conviction on charges of possession of a firearm prohibited, firearm not to

be carried without a license, and possession of a firearm with an altered

manufacturer’s number.1         He received an aggregate sentence of 48 to 96

months’ incarceration, followed by five years of probation.        In this timely

appeal, Vicks claims the trial court erred in failing to grant his motion to

suppress physical evidence, the gun. Vicks argues he was subjected to an

investigative detention without reasonable suspicion when the arresting police

officer called out his name and said hello. After a thorough review of the

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6110.2, respectively.
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submission by the parties, relevant law, and the certified record, we affirm.

      Before we set forth the relevant history of this matter, we restate our

well-settled standard of review.

      When reviewing a trial court’s denial of a suppression motion, our
      standard of review is as follows:

         our standard of review in addressing a challenge to a trial
         court's denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct. [Commonwealth v.] Woodard,
         [634 Pa. 162,] 129 A.3d [480,] 498 [(2015)]. We are
         bound by the suppression court's factual findings so long
         as they are supported by the record; our standard of
         review on questions of law is de novo. Commonwealth v.
         Galvin, 603 Pa. 625, 985 A.2d 783, 795 (2009). Where,
         as here, the defendant is appealing the ruling of the
         suppression court, we may consider only the evidence of
         the Commonwealth and so much of the evidence for the
         defense as remains uncontradicted. [Commonwealth v.]
         Poplawski, [634 Pa. 517,] 130 A.3d [697,] 711 [(2015)].
         Our scope of review of suppression rulings includes only
         the suppression hearing record and excludes evidence
         elicited at trial. In the Interest of L.J., 622 Pa. 126, 79
         A.3d 1073, 1085 (2013).
      Commonwealth v. Yandamuri, --- Pa. ----, 159 A.3d 503, 516
      (2017).

      The Fourth Amendment to the United States Constitution and
      Article I, Section 8 of the Pennsylvania Constitution protect
      individuals   from    unreasonable    searches  and   seizures.
      Commonwealth v. Lyles, 626 Pa. 343, 350, 97 A.3d 298, 302
      (2014). Search and seizure jurisprudence defines three levels of
      interaction between citizens and police officers and requires
      different levels of justification based upon the nature of the
      interaction. Commonwealth v. Tam Thanh Nguyen, 116 A.3d
      657, 664 (Pa. Super. 2015).

         These categories include (1) a mere encounter, (2) an
         investigative detention, and (3) custodial detentions. The

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        first of these, 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 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. Baldwin, 147 A.3d 1200, 1202-1203 (Pa.
     Super. 2016) (citation omitted).

     In analyzing whether an interaction has escalated from a mere
     encounter to an investigative detention, we conduct an objective
     examination of the totality of the circumstances using the
     following standard:

        The totality-of-the-circumstances test is ultimately
        centered on whether the suspect has in some way been
        restrained by physical force or show of coercive authority.
        [Commonwealth v.] Strickler, [563 Pa. 47, 757 A.2d
        884,] 890 [(2000)]. Under this test, no single factor
        controls the ultimate conclusion as to whether a seizure
        occurred—to guide the inquiry, the United States Supreme
        Court and this Court have employed an objective test
        entailing a determination of whether a reasonable person
        would have felt free to leave or otherwise terminate the
        encounter. Id. at 890, n. 8. (citation omitted). “[W]hat
        constitutes a restraint on liberty prompting a person to
        conclude that he is not free to ‘leave’ will vary, not only
        with the particular police conduct at issue, but also with
        the setting in which the conduct occurs.” Michigan v.
        Chesternut, 486 U.S. 567, 573-574, 108 S.Ct. 1975, 100
        L.Ed.2d 565 (1988)(citations omitted).

     Lyles, 626 Pa. at 350-51, 97 A.3d at 302-303.

     Moreover, we emphasize that:

        This Court and the United States Supreme Court have
        repeatedly held a seizure does not occur where officers
        merely approach a person in public and question the
        individual or request to see identification. See Hiibel v.
        Sixth Judicial District of Nevada, 542 U.S. 177, 185,

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          124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (quoting INS v.
          Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d
          247 (1984) (officer free to ask for identification without
          implicating Fourth Amendment, and requests for
          identification do not, by themselves, constitute seizures);
          Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382,
          115 L.Ed.2d 389 (1991) (citation omitted) (even when
          officers lack suspicion, no Fourth Amendment violation
          where they merely approach individuals on street to
          question       them       or      request      identification);
          [Commonwealth v.] Au, [615 Pa. 330, 42 A.2d 1002,]
          1007-09       [(2012)]     (citations    omitted)      (same);
          Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698,
          701-02 (2005) (citation omitted) (same). Officers may
          request identification or question an individual “so long as
          the officers do not convey a message that compliance with
          their requests is required.” Bostick, at 437, 111 S.Ct.
          2383. Although police may request a person's
          identification, such individual still maintains “ ‘the right to
          ignore the police and go about his business.’ ” See In re
          D.M., 556 Pa. 445, 781 A.2d 1161, 1164-65 (2001)
          (citations omitted) (quoting Illinois v. Wardlow, 528
          U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).

      Lyles, 626 Pa. at 351, 97 A.3d at 303.

Commonwealth v. Singleton, 169 A.3d 79, 82-83 (Pa. Super. 2017).

      With these standards in mind, we turn our attention to the underlying

facts of this matter. The trial court specifically found as follows:

      On November 19, 2015 at approximately 9:23 A.M. Officer James
      E. Nolan of the Chester City Police Department was on duty and
      in the area of 16th Street in Chester, Pennsylvania.

      Officer Nolan was in a marked vehicle and in uniform and was
      conducting an “area check.”

      Officer Nolan described an area check as follows: “you just drive
      through the area, and look for any suspicious activity.”

      Officer Nolan was familiar with the area of East 16th Street and
      Washington Avenue in Chester, Pennsylvania. He described the

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      area as a “high-crime area” and explained that he was aware that
      the area has experienced a rash of robberies and has frequent
      shootings.

      At that time Officer Nolan observed [Vicks] standing on the south
      side of East 16th Street on the northeastern edge of the Widener
      campus area.

      A review of the testimony of Officer Nolan reveals that he knew
      [Vicks] from prior encounters with him.

      Officer Nolan knew where [Vicks] resided, specifically, that he
      lived in the Sun Village section of the city of Chester.

      Upon recognizing [Vicks], Officer Nolan pulled his patrol car over
      to where [Vicks] was standing.

      He said “hello Mr. Vicks” and started to exit his patrol car.

      While he was exiting his patrol car, [Vicks] ran away.

      Almost immediately, as [Vicks] was running, he reached for the
      waist area of his pants. As he did so, he lifted up the bottom of
      his shirt and exposed the handle of a handgun, which Officer Nolan
      observed.

      Officer Nolan was aware that [Vicks] was a person prohibited from
      carrying a firearm due to a prior conviction. Accordingly, Officer
      Nolan gave chase and ultimately apprehended [Vicks].

Findings of Fact and Conclusions of Law, 10/13/2016 at 1-2.

      Against these findings, Vicks claims that he was subjected to an

investigative detention the moment Officer Nolan called out his name.

Specifically, Vicks claims, “[a] reasonable person would believe that he was

being restrained or stopped if a uniformed police officer, who had previously

stopped the person, approached the person in his vehicle and then called the

person by name.” Vicks’ Brief at 4-5. Vicks cites no case law that directly

supports his proposition that a uniformed police officer calling to a person by

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name represents the coercive authority or physical force described in

Commonwealth v. Jones, 378 A.2d 835 (Pa. 1977), that would transform a

mere encounter into an investigative detention. Indeed, our review of case

law also leads to a similar lack of success. Nonetheless, Vicks cites Jones,

supra, as supportive of his claim. We find that argument unavailing.2

        In Jones, a Missouri state trooper stopped Jones, who was walking

along a Missouri highway. Jones looked unkempt but was breaking no law.

Nonetheless, the trooper stopped Jones, asked him questions, asked for his

identification, and told him to sit in the back seat of his police vehicle while he

ran a background check on Jones.3 Even though the trooper told Jones he

could leave while the background check was occurring, our Supreme Court

determined while the initial stop of Jones was a close call, by the time the

trooper told Jones to sit in the car, he was actively restricting Jones’s

movements, thereby creating an investigative detention. Because the trooper

had no reasonable suspicion that Jones was engaged in criminal activity while

walking along the roadway, Jones’s subsequent statement to the trooper was

suppressed.


____________________________________________


2 There is no question that Officer Nolan had a reasonable suspicion of criminal
activity when he observed a pistol grip in Vicks’ waistband. Officer Nolan knew
that Vicks was not allowed to possess a firearm due to a prior conviction.
Accordingly, our analysis need focus only on the initial interaction between
Officer Nolan and Vicks.

3   The background check revealed Jones was wanted in Pennsylvania.


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      Instantly, the trial court determined, and we agree, that Officer Nolan,

simply saying hello to Vicks and starting to get out of the car, did not engage

in the use of coercive authority, thereby transforming the brief encounter into

an investigative detention.    In fact, Jones, supra, relied upon by Vicks,

recognizes that any encounter with a uniformed law enforcement officer

represents a certain level of exercise of authority by that officer.      Such

authority is inherent with the police. However, pursuant to Jones, it takes

more than the routine appearance of a uniformed police officer to represent

the type of coercive authority needed to subject a citizen to an investigative

detention.

      Because there is inherent authority in the presence of a police officer,

the totality of the circumstances must be examined to determine whether such

coercive authority has been invoked. In Jones, stopping a pedestrian, the

escalation of questioning, and telling the person to sit in the car, represented

coercive authority and an investigative detention. Instantly, the trial court

determined as a matter of law, and we agree, that no such factors were

present.     The trial court concluded: “In the case sub judice, Officer Nolan

simply pulled his police car up to the curb and said ‘hello’ to [Vicks]. There

was no order to stop and remain. There is nothing in the record about any

lights or sirens being activated.” Findings of Fact and Conclusions of Law,

supra, at 2. The certified record is bereft of evidence demonstrating anything

other than the presence of a uniformed police officer when Vicks turned and




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fled the scene. As such, Vicks’ argument that no reasonable person, to whom

a police officer has said hello by name, would feel able to leave, fails.4

       As noted above, once Officer Nolan spotted the pistol grip, he had

reasonable suspicion that Vicks was committing a crime. Therefore, the

subsequent foot chase, apprehension and arrest of Vicks were all legally

justified.

       Because Vicks was not subjected to an investigative detention when

Officer Nolan greeted him by name, Vicks is not entitled to relief. Accordingly,

the trial court properly denied Vicks’ motion to suppress.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/18




____________________________________________


4 We also note there is an internal contradiction in Vicks’ argument. He claims
that in the situation presented to him, no reasonable person would have felt
free to leave, yet that is exactly what he did.

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