J.A21015/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
PATRICK HARRISON,                           :
                                            :
                          Appellant         :     No. 1533 EDA 2014

                      Appeal from the Order May 12, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: MC-51-CR-0036469-2013

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 24, 2015

        Appellant, Patrick Harrison, appeals from the order denying his petition

for writ of certiorari with the Philadelphia County Court of Common Pleas

following a judgment of sentence entered in the Philadelphia Municipal Court

after a bench trial and conviction for simple possession of a controlled

substance.1     He challenges whether the police had reasonable suspicion or

probable cause to seize him. We affirm.

        We adopt the facts and procedural history set forth by the trial court.

See Trial Ct. Op., 11/4/14, at 1-3.2 Appellant was tried and found guilty in


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
2
  We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
J.A21015/15


the Municipal Court of Philadelphia County, which sentenced him to twelve

months’ probation on January 23, 2014. On February 22, 2014, he filed a

petition for writ of certiorari with the Court of Common Pleas, which denied

same on May 12, 2014. Appellant timely appealed on May 14, 2014, and

timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issues:

         Did not the [municipal] court err when it denied
         [Appellant’s] motion to suppress physical evidence where
         two police officers seized him as he was walking down the
         street, without reasonable suspicion or probable cause,
         and where [Appellant’s] flight and the recovery of a jar of
         PCP were the fruit of an unlawful stop?

Appellant’s Brief at 3.

      Appellant claims that while walking outside at 10:30 p.m., a patrol car

with two police officers pulled up to him and asked him to approach and

remove his hands from his pockets.             He contends he responded by

continuing to walk, at which point one officer exited the vehicle and again

ordered him to approach and remove his hands from his pockets. Appellant

asserts he responded by removing his hands from his pockets but then

putting them back in. He argues he made no movement and the officers did




to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant criminal complaint was filed
prior to October 30, 2013, In re L.J. does not apply.




                                     -2-
J.A21015/15


not discern any suspicious objects on his person that justified his seizure.

We discern no basis for relief.

              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. Where the prosecution prevailed in
         the suppression court, we 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, we are
         bound by those facts and may reverse only if the legal
         conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted). In evaluating

the legal conclusion drawn by the suppression court, this Court may also

consider uncontradicted testimony from the suppression hearing not

included in the suppression court’s findings of fact.   Commonwealth v.

Mendenhall, 715 A.2d 1117, 1119 n.1 (Pa. 1998). We can also affirm on

any basis. Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super.

2010).

            Initially we note that Fourth Amendment jurisprudence
         has led to the development of three categories of
         interactions between citizens and the police. The first of
         these is 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 a 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.



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J.A21015/15


Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations and

footnote omitted).

     The      Pennsylvania   Supreme         Court   adopted   the   objective

Jones/Mendenhall3 standard “in determining whether the conduct of the

police amounts to a seizure or whether there is simply a mere encounter

between citizen and police officer.”    Commonwealth v. Matos, 672 A.2d

769, 774 (Pa. 1996).

        In [Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969)],
        this Court adopted the United States Supreme Court’s
        decision in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
        L. Ed. 2d 889 (1968), which permits a police officer to
        effect a precautionary seizure where the police have a
        reasonable suspicion that criminal activity is afoot. Terry,
        and by analogy Hicks, recognized that there are some
        instances in which an individual may not be arrested, but
        will still be considered to be “seized.” In Jones, this Court
        adopted an objective standard for determining what
        amount of force constitutes the initiation of a Terry stop:
        whether a reasonable person innocent of any crime, would
        have thought he was being restrained had he been in the
        defendant’s shoes. This case, which preceded the United
        States Supreme Court’s decision in . . . Mendenhall, . . .
        was a precursor to the so-called “Mendenhall” test
        posited by the United States Supreme Court: “a person
        has been ‘seized’ within the meaning of the Fourth
        Amendment only if, in view of all the circumstances
        surrounding the incident, a reasonable person would have
        believed he was not free to leave.”

           The Jones/Mendenhall standard has since been
        consistently followed in Pennsylvania in determining
        whether the conduct of the police amounts to a seizure or

3
 United States v. Mendenhall, 446 U.S. 544 (1980); Commonwealth v.
Jones, 378 A.2d 835 (Pa. 1977).




                                       -4-
J.A21015/15


         whether there is simply a mere encounter between citizen
         and police officer.

Id. at 773-74 (some punctuation and citations omitted).

       The Pennsylvania Supreme Court provided further guidance in applying

this “totality of the circumstances” test:

         In evaluating the circumstances, the focus is directed
         toward whether, by means of physical force or show of
         authority, the citizen-subject’s movement has in some way
         been restrained. In making this determination, courts
         must apply the totality-of-the-circumstances approach,
         with no single factor dictating the ultimate conclusion as to
         whether a seizure has occurred.

Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000) (footnotes and

some    citations   omitted).    Factors     examined   in   this   totality-of-the-

circumstances approach include “all circumstances evidencing a show of

authority or exercise of force, including the demeanor of the police officer,

the manner of expression used by the officer in addressing the citizen, and

the content of the interrogatories or statements.” Mendenhall, 715 A.2d at

1119. This Court also set forth a non-exclusive list of factors:

         [T]he number of officers present during the interaction;
         whether the officer informs the citizen they are suspected
         of criminal activity; the officer’s demeanor and tone of
         voice; the location and timing of the interaction; the visible
         presence of weapons on the officer; and the questions
         asked. Otherwise inoffensive contact between a member
         of the public and the police cannot, as a matter of law,
         amount to a seizure of that person.

Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008)

(en banc) (citation omitted).



                                      -5-
J.A21015/15


      A request to talk does “not need to be justified by any level of

suspicion.”      In re D.M., 781 A.2d 1161, 1165 (Pa. 2001).     A request is

distinguishable from a demand.       Commonwealth v. Au, 42 A.3d 1002,

1007 n.3 (Pa. 2012).         A seizure does not occur when police request

identification from an individual or ask questions of that individual.   Id. at

1007 (quoting, inter alia, I.N.S. v. Delgado, 466 U.S. 210, 216 (1984)

(“[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment

violation.”)).    Similarly, a police demand to keep one’s hands out of one’s

pockets is a “minor inconvenience” and “not a substantial impairment on [a

defendant’s] liberty of movement, particularly considering the officers[’]

legitimate concerns for their own safety.”     Commonwealth v. Lyles, 54

A.3d 76, 83 (Pa. Super. 2012).

      In sum, the question of “whether the police needed some level of

requisite cause at the time they initially approached” the defendant is

“governed by the type of encounter that the police initiated when they

approached” the defendant.        In re D.M., 781 A.2d at 1164 (emphases

added). The critical inquiry is what type of encounter the police initiated at

the time they initially approached the defendant. See id. After identifying

the type of encounter—e.g., mere encounter, investigative detention, or

custodial detention—this Court must then determine whether the police had

the requisite cause for that encounter, respectively, e.g., no suspicion

required, reasonable suspicion that criminal activity was afoot, or probable



                                      -6-
J.A21015/15


cause for an arrest. See Ellis, 662 A.2d at 1047; Jones, 378 A.2d at 839

n.4.

       Instantly, Appellant’s argument did not address the flash information

relied on by the police and their belief that Appellant matched the flash.

See Trial Ct. Op. at 2. Under the totality of the circumstances, we assume a

seizure occurred when the police, late at night and in a high crime area,

initially asked Appellant to “come here,” thus issuing an official compulsion

to stop. See Mendenhall, 715 A.2d at 1119; Ellis, 662 A.2d at 1047. The

police reinforced the directive to approach the vehicle when one of the

officers exited the vehicle and asked Appellant to remove his hands from his

pockets and “come here.” See Ellis, 662 A.2d at 1047. In other words, the

circumstances were such that a reasonable, innocent person, in Appellant’s

shoes, would have thought he was being restrained. See Matos, 672 A.2d

at 773-74.

       Consequently, we ascertain whether the police had the requisite

reasonable suspicion that criminal activity was afoot after initiating the

investigative detention.   See id.; Jones, 378 A.2d at 839 n.4.           In

establishing whether there was reasonable suspicion, it is axiomatic that the

United States and Pennsylvania constitutions “do not proscribe all searches

and seizures . . . only ‘unreasonable’ ones.” Commonwealth v. Beaman,

880 A.2d 578, 582 (Pa. 2005) (footnote omitted).

         The reasonableness of a seizure that is less intrusive than
         a traditional arrest depends upon a three-pronged


                                    -7-
J.A21015/15


         balancing test derived from Brown v. Texas, 443 U.S. 47,
         99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), in which the
         reviewing Court weighs the gravity of the public concerns
         served by the seizure, the degree to which the seizure
         advances the public interest, and the severity of the
         interference with individual liberty.    To be deemed
         reasonable under this standard, such a seizure must
         ordinarily be supported by reasonable suspicion, based
         upon objective facts, that the individual is involved in
         criminal activity. The existence of individual suspicion,
         however, is not an “irreducible”          component of
         reasonableness in every circumstance.

Id. at 582 (emphasis added and citations and some punctuation omitted);

accord Commonwealth v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006)

(stating that “the Fourth Amendment generally requires the presence of

individualized suspicion to justify a seizure”).      “A primary concern when

balancing opposing interests is protecting the individual from arbitrary

invasions resulting from the broad discretion of the officers.” Mistler, 912

A.2d at 1271.    Instantly, because of the flash and the police belief that

Appellant   matched    the   flash,4   we   hold   that   under   the   totality   of

circumstances, the police reasonably believed Appellant was involved in

criminal activity.    See Beaman, 880 A.2d at 582 (holding reasonable

suspicion based on objective facts). Accordingly, we discern no error by the




4
  We acknowledge that the flash description was for a gunpoint robbery
committed by a black male wearing a white hoodie and a black male wearing
a blue hoodie; Appellant is a black male who was wearing a black hoodie
that appeared to be dark or blue at the time the police encountered him.
N.T., 1/23/14, at 7-8, 14-15, 24, 26.




                                       -8-
J.A21015/15


trial court and affirm, albeit on different grounds. See In re J.E., 937 A.2d

at 425; Clouser, 998 A.2d at 661 n.3.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/2015




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            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                  FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                           CRIMINAL TRIAL DIVISION



 COMMONWEAL TH OF PENNSYLVANIA                                COURT OF COMMON PLEAS
                                                              PHILADELPHIA COUNTY

                  vs.                                         NO.: MC-51-CR-0036469-2013

 PATRICK HARRISON

                                                                                                     ;,,_,·;

                                         OPINION

 PROCEDURAL HISTORY

          Defendant, Patrick Harrison, was charged as of the above bill and term number

with knowing and intentional possession of a controlled substance and resisting arrest

following his arrest on September 18, 2013. On January 23, 2014, defendant appeared

before the Honorable Frank T. Brady of the Municipal of Philadelphia County for trial.

Prior to the commencement of trial defendant litigated a motion to suppress, which Judge

Brady denied. Defendant then proceeded to trial and at the conclusion of the trial Judge

Brady found defendant guilty of the drug offense but not guilty of the resisting arrest

charge.      Judge Brady then imposed a sentence of twelve months' probation upon

defendant.

          Following the imposition of sentence, defendant filed a petition for writ of

certiorari. The petition was heard by this Court and denied. Defendant thereafter filed a

notice of appeal and a requested Pa.R.A.P. l 925(b) statement.
                                                 MC·51·CR·0036469·2013     Comm. v. Harrison, Patrick M.
                                                                         Opinion




                                                      III I I IIII/ II IIII I II Ill l/1
                                                               7218716041
                                                                                           Circulated 07/08/2015 12:39 PM




     FACTUAL     HISTORY

             On September     18, 2013, at approximately       10:30 p.m., Philadelphia         Police Officer

     Brian McCarthy    and his partner,      Officer Gallagher,      was on routine      patrol when they

     received a radio call indicating    that a gunpoint     robbery had just occurred          in the area of

     4211d and Walnut Streets and that the complainant had described his assailants as two

     black men garbed in blue and white hooded sweatshirts respectively, who had fled in a

    westerly direction. (N. T. 6- 7, 26). 1 Approximately two minutes thereafter, the officers

    observed defendant in the vicinity of 44111 and Walnut Streets walking northbound on 44th

    Street. Id. Because he was wearing what the officers believed to be a blue sweatshirt and

    he matched the flash information, the officers told defendant to approach them.                        (N.T.

    7).2 Defendant looked at the officers, stuck his hands in his pocket and kept walking. Id.

           As defendant was walking away, Officer McCarthy exited his vehicle, told

    defendant to remove his hands from his pocket and to come to him.                     Id.      Defendant

    complied with both requests but as he approached the officers, he placed his hands back

    inside his pockets. (N.T. 7). Officer McCarthy                removed defendant's hands from

    defendant's pockets at which time defendant fled northbound on 44th Street. (N.T. 8).

    Officer McCarthy pursued him and managed to subdue defendant, who was struggling,

    by getting him down onto the ground and handcuffing him with the help of other officers.

Id.




I
  All references to the record refer to the testimony recorded on January 23, 2014, during the motion to
suppress and trial.
2
  Officer McCarthy indicated that on closer inspection the sweatshirt was black but appeared to be blue
because it was dark. (N .T. 14).

                                                     2
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         Before he was apprehended     and he as he was fleeing defendant discarded a glass

 Jar from his right hand pocket.       Id. Police retrieved   the glass object     after securing

 defendant.   It was found to contain more than six grams of PCP.    (N .T. 48).

 DISCUSSION

         In his l 925(b) statement, defendant asserts that this Court erred by denying his

 writ of certiorari. According to defendant the writ should have been granted because

 Judge Brady erred by denying his motion to suppress because police lacked sufficient

 grounds to effectuate an investigative detention of him given that he was merely walking

 down the street and did not match the description of either robbery suspect. Defendant

 further contends that because the police did not have grounds to stop him the PCP should

 have been suppressed insofar as it was discarded as a result of illegal police conduct.

        A lower court's decision on the issuance of a writ of certiorari            will not be

disturbed absent an abuse of discretion. Commonwealth v. McGinley, 563 A.2d 518 (Pa.

Super. 1989). The standard of review for a challenge to the denial of a motion to suppress

is that, assuming there is support in the record, the reviewing court is bound by the facts

as found by the suppression court and may reverse the court only if the legal conclusions

drawn from those facts are in error. Commonwealth v. Jackson, 698 A.2d 571, 572 (Pa.

1997). "[The ]scope of review is limited to the factual findings and legal conclusions of

the [trial] court." In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). The

reviewing court is "limited to considering only the evidence of the prevailing party,

and so much of the evidence of the non-prevailing party as remains uncontradicted when

read in the context of the record as a whole." Id.




                                              3
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         Our Pennsylvania     courts require law enforcement       officers   to demonstrate

 ascending levels   of suspicion   to justify their interactions   with citizens      as those

 interactions become more intrusive.   The first of these is 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. Commonwealth v. Pakacki, 901 A.2d 983, 987

 (Pa. 2006). The second, an "investigative detention," must be supported by a 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,     Id.   An

 officer may conduct a brief investigative stop of an individual where the totality of the

 circumstances leads the officer to possess reasonable suspicion that criminal activity is

 afoot. Commonwealth v. Melendez, 676 A.2d 226, 228 (Pa. 1996).

        Finally, an arrest or "custodial detention" must be supported by probable cause.

See Commonwealth v. Rodriguez, 614 A.2d 1378, 1382 (Pa. 1992). The key difference

between an investigative detention and a custodial one is that the latter involves such

coercive conditions as to constitute the functional equivalent of an arrest, Pakacki, 901

A.2d at 987.    In determining whether an encounter with the police is custodial, the

standard is an objective one, and must be determined with reference to the totality of the

circumstances. Commonwealth v. Edmiston, 634 A.2d 1078, 1085-86 (Pa. 1993).

       Whenever a police officer stops a person and restricts his or her freedom to leave,

the officer has "seized" the individual and the protections of the Fourth Amendment

apply. Terry v. Ohio, 392 U.S. 1, 16 (1968).    "[A]n encounter becomes a seizure if the

officer engages in conduct which a reasonable man would view as threatening or

offensive even if performed by another private citizen. This would include such tactics



                                            4
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     such as ... blocking the path of the suspect, and encircling the suspect by many officers ..

     . . " Bennett, 604 A.2d at 283. To determine whether an interaction rose to the level of a

     seizure,    courts must examine the totality of the circumstances.                 Commonwealth v.

     Strickler, 757 A.2d 884, 890 (Pa. 2000) (quoting 3 WAYNE LEFAVE,                          SEARCH      AND

     SEIZURE§ 9.2(H) (20 ED. 1987).

                Instantly, the suppression court found that the interaction originated as a mere

     encounter and only later rose to the level of an investigative detention after defendant put

    his hands back inside his pockets after being told to remove them from his pockets and he

    fled after Officer McCarthy removed defendant's              hands from them.          (N.T. 39). This

    Court found nothing amiss with this conclusion because the officers did nothing

    suggesting that defendant could not continue on his way during their initial interaction

    with defendant. The police did not grab defendant, brandish weapons, block his way, or

    use language a reasonable person would have concluded could not be ignored.

            Police officers are "entitled to approach ordinary citizens on the street and ask a

    few questions." Commonwealth v. Guzman, 44 A.3d 688, 694 (Pa. Super. 2012). It was

    only after defendant refused to remove his hands from his pockets did the encounter rise

    to the level of an investigatory stop.3       In Commonwealth v. Matiin, 705 A.2d 887 (Pa.

    Super. 1997), police received an anonymous tip at 3:30 p.m. that Martin was selling

narcotics at the Capital Cafe. Martin, 705 A.2d at 890. The tip was relayed to Detective




3
  It is noted that simply asking someone to remove his hands from his pocket does not escalate a mere
encounter into an investigative detention. See Commonwealth v. Lyles, 54 A.3d 76 (Pa. Super. 2012),
affirmed, 97 A.3d 298 (Pa. 2014) (noting that the minor act of asking someone to remove his hands from
his pocket is "not a substantial impairment on ... liberty of movement, particularly considering the officers
legitimate concerns for their own safety.").

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 Raymond Greene who knew Martin. Id. Detective Greene proceeded to the Cafe where

 he approached Martin, asked him if he could speak with him, and then asked him "to step

 outside." Id. Martin responded, "Okay," and exited the Cafe. Id.

         On appeal, the Superior Court held that in asking Martin to talk and step outside

 did not initiate an investigative detention because Detective Greene did not approach

 Martin in a threatening manner, did not coerce or intimidate him, and never told Martin

 that he was required to leave the Cafe. Id.

        Similarly, In the Interest of D.M., 781 A.2d 1161 (Pa. 2001), the Pennsylvania

 Supreme Court held that no seizure had occurred in a case in which an officer received a

 call that a man was seen with a gun at a certain intersection in Philadelphia. Id., 781 A.2d

at 1162. Police responded immediately and saw D.M., who matched the description of

the armed man provided by the caller. Id. The officer "exited his vehicle and told [D.M.]

to come over." Id. The Supreme Court found that the officer acted legally his iteratction

with "did not need to be justified by any level of suspicion" because, "at the time the

police initially approached D.M. it was unclear whether the police intended to do

anything other than talk to him." Id.

       Instantly, as in the foregoing cases, police did nothing more than manifest an

intention to speak to defendant.    As noted above, there is no evidence that the police

acted in a threatening, coercive,       or intimidating   manner, or that when they first

encountered defendant they told him that he was required to stop. Instead, the record

shows that defendant voluntarily stopped and began speaking with the police. It was only

after defendant placed his hands inside his pocket that the incident escalated into an




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  investigative detention.   Thus, the lower court did not en by finding that defendant's

  rights were not violated when police initially interacted with defendant.

         Next, the fact that the police ordered defendant to take his hands out of his

 pockets did not convert the encounter into a seizure. The Superior Cami has ruled that

 "if during a mere encounter, an individual on his own accord, puts his hands in his

 pocket, thereby creating a potential danger to the safety of a police officer, the officer

 may justifiably reach for his side arm and order the individual to stop and take his hand

 out of his pocket. Such reaction by a police officer does not elevate the mere encounter

 into an investigative detention because the officer's reaction was necessitated by the

 individual's conduct." Commonwealth v. Caiier, 779 A.2d 591, 594 (Pa. Super. 2001);

 see also Commonwealth v. Hall, 713 A.2d 650, 653 (Pa. Super. 1988) (the defendant was

 not seized when an officer asked him rev'd on other grounds, 771 A.2d 1232 (Pa. 2001).

        Thus, by having his hands in his pocket and then placing them back inside them

after being directed to remove them, defendant gave police grounds to stop and

investigate him. In Hall, supra, the facts were as follows:

               Two Reading police officers, patrolling in their cruiser, saw
               defendant and a companion conversing in an alley near a
               cafe. The police parked their vehicle, the conversants broke
               up, and appellant approached the police car while getting
               his I.D. out of his wallet and asked "Is everything all right,
               officer?" After a brief exchange, the officer removed from
               his vehicle and noticed Hall had his hands in his pocket. He
               asked if he was armed and Hall said he was not. Hall was
               asked to take his hands out of his pocket, but only removed
               his left hand. As the officer came to him, Hall pivoted with
               his hand in his pocket. After being asked again to remove
               his hand, he did, but became confrontational and stated that
               he would not be searched. The officer replied that he would
               not search him, but only pat him down for weapons.

Hall, 713 A.2d at 652-653.


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         The Hall Court ruled that "when Hall approached with his hand thrust in his

  pocket and refused to remove it, the encounter escalated into a situation where the totality

  of circumstances involved a reasonable suspicion      and justified a detention to stop and

 frisk." Hall, 713 at 653. Thus, the Hall's decision to keep his hand in his pocket after

 being asked to remove it escalated the encounter into one of reasonable suspicion.

         Here, as in Hall, defendant's decision to again place his hands raised the matter

 from a mere encounter to an investigative detention. The finding by the lower court that

 this was so was not erroneous.

         In addition, even if the initial interaction between the police and defendant herein

 did rise to the level of an investigative detention, a reversal is not required because police

 had the right to stop defendant based on the totality of circumstances existing at the time.

 While on routine patrol, the officers herein received a flash report of a gunpoint robbery.

The flash report provided a physical and clothing description of the assailants as well as

the direction in which they fled. Not more than two minutes later, two block west of the

scene of the robbery,      the police observed     defendant,   who matched      the physical

description of one of the assailants, was dressed in garb closely matching the description

of the clothes worn by one of the suspects and had his hands in his pockets.

        Case law is clear that facts such as the instant ones justified the stop. As a general

matter, police are permitted      to conduct an investigatory       stop "when relying on

information transmitted by a valid police bulletin." In re D.M., 727 A.2d 556, 558(Pa.

1999) ( citations omitted); See also Commonwealth v. Foglia, 979 A.2d 357 (Pa. Super.

2009) (police had reasonable suspicion to conduct investigatory detention upon arriving

at location, a high crime area, within 90 seconds of the radio call and found the defendant



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 matching the description of the radio call, and the defendant walked away from the

 approaching police cruiser and grabbed at his waist band); Commonwealth v. Jackson,

 519 A.2d 427, 430 (Pa. Super. 1986) (police officer may rely on police radio flash

 information to justify investigatory stop).

        That same factor present here as well as others, all of which justified the stop of

 defendant, including the recent radio call, the fact that the robbery was committed by

 gunpoint, and defendant's similarity to the description broadcast over police radio.

        Defendant asserts that the stop was illegal because he did not match the flash

 description because his sweat shirt was black in color and not blue.             This small

discrepancy was explained by the officer.          Moreover, the law is clear that minor

differences in clothing do not render a stop illegal. See, e.g., Commonwealth v. Vinson,

522 A.2d 1155, 1157 (Pa. Super. 1987) (stop proper although the appellant and his

companion were shorter than the victim's description, and their jackets were different);

Commonwealth v. Sheridan, 437 A.2d 44 (Pa. Super. 1981) (stop was proper even though

the defendant wore a different color and type of coat from the description, and he lacked

the described hat).

       It is important to note that a reviewing court "cannot evaluate the totality of the

circumstances through the grudging eyes of hindsight nor in terms of library analysis, but

as understood by those versed in the field of law enforcement."          Commonwealth        v.

Jackson, 907 A.2d 540, 543 (Pa. Super. 2006) (quoting Commonwealth v. Shelly, 703

A.2d 499, 503 (Pa. Super. 1997)).




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         Finally, regarding defendant's claim that the illegal actions of the police forced

 him to abandon the PCP, and therefore the lower court erred by denying his suppression

 motion, it is noted that

                  [T]he principle of "forced abandonment" is not recognized
                under the Fourth Amendment, California v. Hodari D., 499
                U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690, (1991),
                although it is under Article 1, Section 8. Conunonwealth v.
                Matos, 43 Pa. 449, 672 A.2d 769 (1996). While
                Pennsylvania      recognizes   the principle     of forced
                abandonment, that legal theory requires that the
                abandonment of contraband or evidence be precipitated by
                illegal police conduct. In the Interest of Evans, 717 A.2d
                542 (Pa.Super. 1998).

Commonwealth v. Jones, 978 A.2d 1000, 1005 n. 6. (Pa. Super. 2009).

        Because the police acted legally in all respects in their interaction with defendant,

there was no forced abandonment and the lower court did not en by denying defendant's

motion to suppress on that ground.

       Accordingly, for all of the foregoing reasons, it is suggested that the ruling made

by this Court denying defendant's petition for writ of certiorari be sustained.

CONCLUSION

       Based on the foregoing, the judgment of sentence should be affirmed.




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