J-S33011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

LACY COLBERT

                               Appellant               No. 987 WDA 2015

              Appeal from the Judgment of Sentence May 20, 2015
      in the Court of Common Pleas of Allegheny County Criminal Division
                       at No(s): CP-02-CR-0014964-2014

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED: May 17, 2016

        Appellant, Lacy Colbert, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following his non-

jury trial convictions for firearms not to be carried without a license 1 and

resisting arrest.2   Appellant contends the trial court erred in denying his

motion to suppress evidence. We affirm.

        On August 7, 2014, Appellant was arrested for the above crimes. On

April 20, 2015, he filed a motion to suppress evidence claiming police did not

have probable cause to arrest Appellant. Mot. to Suppress, 4/20/15, at 1-

4. Specifically, Appellant averred he “was pursued under the mistaken belief




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6106(a)(1).
2
    18 Pa.C.S. § 5104.
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that he was warrant suspect Zachary Threats and based on this mistaken

belief he was pursued and unlawfully arrested.” Id. at 3.

     The trial court held a suppression hearing on May 20, 2015, at which

the Commonwealth presented the testimony of Detective Calvin Kennedy of

the Pittsburgh Police Department. Appellant did not present any evidence.

Following the hearing, the trial court made the following findings of fact and

conclusions of law:

           That Officer Calvin Kennedy, an officer with 21 years
           [of]    experience    with   the    Pittsburgh  Police
           Department with a special focus in professional
           development in the field of narcotics since 2001, and
           also has training in firearms, firearms recognition of
           potentially armed individuals based on various
           factors    such    as   hand    movements,     certain
           movements toward certain areas of the body,
           clothing, bulges, things of that nature. Also[, he]
           made hundreds of firearms arrests during his years
           of experience on the Pittsburgh Police Force.

              On August 5 of 2014, there was a broadcast, a
           BOLO,[3] . . . a warrant for a one, Zachary Threats . .
           . for homicide. Mr. Threats was known to Officer
           Kennedy as early as 2012 by virtue of his criminal
           activity as well as his stature, physical stature to
           Officer Kennedy. In this particular instance, besides
           Officer Kennedy’s personal knowledge of his
           propensity for violence and danger. In this instance
           the particular BOLO was that Mr. Threats would not
           surrender voluntarily, and he was armed and
           dangerous. He was known to be a person who
           frequented the North Side Sandusky Court area.
           Sandusky Court itself being known as a high crime
           area, guns , drugs, assaults, and criminal homicide.

3
  A “BOLO” is a notification for police to “be on the lookout.”      See N.T.,
5/20/15, at 5.



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              On August 7, at 11:30 p.m. Officer Kennedy and
          his colleagues were in Sandusky Court area looking
          for Mr. Threats.      They noticed a group of men
          standing near a building. Amongst them was a
          person of tall stature who fit the description of Mr.
          Threats. The officers formulated a plan to approach
          that person, to place Mr. Threats, if in fact it was Mr.
          Threats under arrest at that juncture. The plan
          itself, the particulars were not contested and are of
          record.

              During the course of the execution of the plan,
          Officer Kennedy, as well as at least two other
          officers, approached a group of men. They were
          identified [as police officers] by virtue of their
          badges being displayed prominently on their chests.
          They came up to the group of men. [Appellant] was
          amongst the group of men and also was the person
          who Officer Kennedy believed to be Mr. Threats by a
          matching description or matching stature. The group
          was illuminated by virtue of flashlights. At that point
          in time [Appellant] grabbed his waistband, he looked
          left and right and ran into an apartment inside of
          Sandusky Court.       He was pursued by Officer
          Kennedy, still under the belief that this was Mr.
          Threats. As they went through the doorway, Officer
          Kennedy further identified himself as Pittsburgh
          Police, grabbed [Appellant] by the sweatshirt, the
          hood of his sweatshirt, and spun him around. Upon
          spinning him around, he noticed a weapon in his
          waistband, eventually turned out to be .357 Taurus.
          A struggle ensued and [Appellant] was eventually
          arrested.

             . . . The [c]ourt finds in this instance that Officer
          Kennedy and his colleagues were properly identified,
          they were on the premises in the area legally, and
          they were about to execute a warrant. At that point
          in time, [Appellant] displayed not only the physical
          characteristics of the person to be apprehended, but
          also at that juncture exhibited conduct consistent
          with possession of a weapon, including reaching for
          his waistband, looking left and right and then flight.


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               [T]he [c]ourt finds there was reasonable suspicion
            and eventually . . . probable cause, and the motion
            to suppress is denied.

N.T., 5/20/15, at 27-30.

      Appellant proceeded to a stipulated, non-jury trial, at which the trial

court found him guilty of the aforementioned offenses. The court sentenced

him to two years’ probation for the firearms offense and two to four days’

incarceration on resisting arrest. Sentencing Order, 5/20/15.

      Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925 statement. The trial court authored a responsive opinion.

      On appeal, Appellant raises the following issue for our consideration:

            I. Did the police violate [Appellant’s] rights under the
            Fourth Amendment of the United States Constitution
            and Article 1 Section 8 of the Pennsylvania
            Constitution by seizing his person without reasonable
            suspicion, and, as a result, the trial court erred in
            not suppressing the fruits of that constitutional
            error?

Appellant’s Brief at 4.

      Appellant contends he was “seized” the moment police officers

illuminated him with their flashlights and “demanded to know what was

going on.” Id. at 15. He argues the “only point of suspicion, and the sole

reason” the officers approached Appellant was that he, like Mr. Threats, is

tall in stature and such a “glaringly vague description” is insufficient to

justify the seizure. Id. at 18 (emphasis in original). Alternatively, Appellant

argues he was seized when Detective Kennedy began chasing him, and that


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Detective Kennedy’s observations prior to the chase did not give rise to a

reasonable suspicion of criminal activity. Id. at 20-24. We disagree.

      Our standard of review over a denial of a suppression motion is well

settled.

            An appellate court may consider only the
            Commonwealth’s evidence 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 record supports the factual findings of the
            trial court, the appellate court is bound by those
            facts and may reverse only if the legal conclusions
            drawn therefrom are in error. However, it is also
            well settled that an appellate court is not bound by
            the suppression court’s conclusions of law.

                                    *    *    *

            In appeals from suppression orders, our scope of
            review is limited to the evidence presented at the
            suppression hearing.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)

(citations and footnote omitted).

            The Fourth Amendment of the Federal Constitution
            and Article I, Section 8 of the Pennsylvania
            Constitution protect individuals from unreasonable
            searches and seizures.        To secure the right of
            citizens to be free from such [unreasonable]
            intrusions, courts in Pennsylvania require law
            enforcement officers to demonstrate ascending levels
            of suspicion to justify their interactions with citizens
            as those interactions become more intrusive. We
            have long recognized that there are three levels of
            intrusion involved in interactions between members
            of the public and the police. The first is a mere
            encounter, which requires no level of suspicion at all.
            The second level is an investigative detention, which
            must be supported by reasonable suspicion. Finally,


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             the third level is an arrest or custodial detention,
             which must be supported by probable cause.

Commonwealth v. Walls, 53 A.3d 889, 892-93 (Pa. Super 2012)

(quotation marks and citations omitted).

      “Th[e Pennsylvania Supreme] 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.”   Commonwealth v. Lyles, 97 A.3d 298, 303 (Pa. 2014).

However, police pursuit of a citizen constitutes a seizure, which must be

supported by either probable cause or reasonable suspicion.      In re D.M.,

781 A.2d 1161, 1164 (Pa. 2001). Accordingly, we reject Appellant’s claim

that he was seized when officers merely approached Appellant and

“demanded to know what was going on.”4         See Appellant’s Brief at 15;

Lyles, 97 A.3d at 303.     Nevertheless, Appellant was subject to a police

seizure when he was pursued. See In re D.M., 781 A.2d at 1164.

      In In re D.M., the Pennsylvania Supreme Court addressed the import

unprovoked flight has on a determination of reasonable suspicion.

             In the seminal case of Terry v. Ohio, 392 U.S. 1, []
             (1968), the United States Supreme Court indicated
             that police may stop and frisk a person where they

4
  Detective Kennedy testified when he approached Appellant, “I illuminated
the group of males, including, [Appellant]. At that time I basically said what
are you guys doing.” N.T. at 9. Appellant characterizes this encounter as
an “interrogation” and asks this Court to infer “authoritative tones” by
police. Appellant’s Brief at 16 n.1. Pursuant to the standard of review by
which we are bound, we decline to do so. See Caple, 121 A.3d at 516-17.



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             had a reasonable suspicion that criminal activity is
             afoot. In order to determine whether the police had
             a reasonable suspicion, the totality of the
             circumstances—the       whole    picture—must     be
             considered.    Based upon that whole picture the
             detaining officers must have a particularized and
             objective basis for suspecting the particular person
             stopped of criminal activity.

                                  *    *    *

             In Wardlow,[5] the Chicago police sent a four-car
             caravan into a high crime area to investigate drug
             activity.   One of the officers in the last vehicle
             observed the respondent on a corner with an opaque
             bag in his hand. The respondent looked at the
             officers and fled.      The officers cornered the
             respondent and upon exiting their car, immediately
             conducted a brief pat-down search for weapons.
             During the pat-down search of the respondent, the
             officer discovered a gun. The issue before the court
             was whether sudden flight in a high crime area
             created a reasonable suspicion justifying a Terry
             stop.

             In explaining that such a seizure was justified, the
             Court reiterated the Terry standard and concluded
             that an officer may, consistent with the Fourth
             Amendment, conduct a brief, investigatory stop
             when the officer has a reasonable, articulable
             suspicion that criminal activity is afoot. The Court
             acknowledged that mere presence in a high crime
             area was insufficient to support a finding of
             reasonable suspicion.      However, a court could
             consider the fact that the stop occurred in a high
             crime area in assessing the totality of the
             circumstances.     Similarly, the Court held that
             unprovoked flight could be considered among the
             relevant contextual considerations, since nervous,
             evasive behavior is a pertinent factor in determining
             reasonable    suspicion and      [h]eadlong flight—

5
    Illinois v. Wardlow, 528 U.S. 119 (2001).



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             wherever it occurs—is the consummate act of
             evasion. . . . Based upon respondent’s unprovoked
             flight in the high crime area, the Court concluded
             that the officer was justified in suspecting that
             criminal activity was afoot.

                Following this decision, it is evident that
             unprovoked flight in a high crime area is sufficient to
             create a reasonable suspicion to justify a Terry stop
             under the Fourth Amendment.

Id. at 1163-64 (some citations and quotation marks omitted).

      This Court clarified “nervous, evasive behavior and headlong flight all

provoke suspicion of criminal behavior in the context of response to police

presence.”     Commonwealth v. Washington, 51 A.3d 895, 899 (Pa.

Super. 2012) (emphasis added).

      Instantly,   the   uncontradicted   testimony   of   Detective   Kennedy

established he was aware of a homicide warrant for a Zachary Threats, with

whom he was personally familiar; he was informed Threats “would be” in

Sandusky Court armed with an assault rifle; he knew Sandusky Court to be

a high crime area;6 he observed Appellant in Sandusky Court and believed

he may be Threats;       he approached Appellant, with his badge displayed,

illuminated his flashlight, and asked a question; and Appellant then grabbed

his waistband, looked left and right, and fled. N.T. 5-9, 27-30.




6
  Specifically, Detective Kennedy elaborated there were “numerous guns,
numerous drugs, there have been numerous aggravated assaults, shootings,
[and] homicides” in that area. N.T. at 9-10.



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     We conclude the record amply supports that Detective Kennedy had

sufficient reasonable suspicion to pursue and seize Appellant.   See Caple,

121 A.3d at 516-17.       Appellant was not seized upon Detective Kennedy’s

approach and request for information. See Lyles, 97 A.3d at 303. At the

time of Appellant’s seizure, Detective Kennedy observed Appellant (1) in a

high-crime area, (2) exhibit behavior consistent with possession of a

firearm, and (3) flee in response to police presence.7 See In re D.M., 781

A.2d at 1163-64; Washington, 51 A.3d at 898.

     Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/17/2016




7
  Appellant acknowledges the police badges were “clearly displayed around
their necks” yet avers he “did not know he was running from police.”
Compare Appellant’s Brief at 15, 16, 18, with id. at 22. The evidence, in
the light most favorable to the Commonwealth, supports Appellant was
aware he was fleeing in response to police presence. See Caple, 121 A.3d
at 516-17; Washington, 51 A.3d at 899.



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