J-A02001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
RANDOLPH LAVELL RODGERS                   :
                                          :
                   Appellant              :   No. 915 WDA 2016

            Appeal from the Judgment of Sentence May 23, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0014275-2015

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                                   FILED MAY 21, 2018

      Randolph Lavell Rodgers appeals from his judgment of sentence of

three to six years imprisonment followed by three years probation after he

was convicted of crimes related to his possession of a firearm and a small

amount of marijuana.      On appeal, Appellant challenges the denial of his

pretrial suppression motion. We affirm.

      The   suppression   hearing   transcript   reveals    the   following.   At

approximately 12:45 a.m. on November 1, 2015, Officer Steve Kondrosky of

the City of McKeesport police department was dispatched to look for a black

male wearing a light-colored sweat suit in the vicinity of a residence that had

been the subject of prior burglaries during which firearms had been stolen.

Approximately two minutes after the dispatch, Officer Kondrosky spotted

Appellant wearing a light-colored sweat suit, and walking in front of a store

two blocks from the residence in question.           Thirty seconds later, he
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encountered Appellant half of a block farther away from the residence, in an

unlit alley not commonly used for foot traffic.    Officer Kondrosky initially

drove past Appellant, and they said hello to each other. Officer Kondrosky

then stopped his vehicle and, getting out of it, asked Appellant to stop so he

could have a word with him. Appellant then grasped at the waistband of his

sweat pants at the right hip, in a manner Officer Kondrosky in his eight

years of experience associated with concealment of a firearm, and fled.

Officer Kondrosky pursued, and when Appellant eventually was taken into

custody, he had a sawed-off rifle in his pants and drugs in his pocket.

      As a result, Appellant was charged with numerous crimes. Appellant

filed a pre-trial motion to suppress all evidence obtained from his seizure,

claiming that Officer Kondrosky lacked reasonable suspicion to stop him.

The trial court denied the motion after a hearing. Following a non-jury trial,

Appellant was convicted of, inter alia, possession of a firearm prohibited and

firearms not to be carried without a license and was immediately sentenced

as indicated above. Appellant filed a timely notice of appeal, and both he

and the trial court have complied with Pa.R.A.P. 1925.

      Appellant raises one question for our consideration:

      Whether the trial court erred in denying [Appellant’s] motion to
      suppress when Officer Kondrosky made clear on cross-
      examination that upon exiting his marked police car, while in full
      uniform, he immediately ordered [Appellant] to stop but, at the
      precise moment of seizure, Officer Kondrosky did not have
      reasonable suspicion, based on specific and articulable facts, to
      believe that [Appellant] was engaged in criminal activity, in


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      violation of his federal and state constitutional rights against
      unreasonable searches and seizures?

Appellant’s brief at 5.

      We consider Appellant’s question mindful of the following standard of

review.

      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 court[]
      below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014) (quoting

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

      The amount of suspicion necessary to validate an officer’s seizure of an

individual varies based upon the nature of the interaction.         As we have

explained,

      The three levels of interaction are mere encounter, investigative
      detention, and custodial detention. A mere encounter can be
      any formal or informal interaction between an officer and a
      citizen, but will normally be an inquiry by the officer of a citizen.
      A mere encounter does not carry any official compulsion to stop
      or respond to police, and as a result, does not need to be
      supported by any level of suspicion.

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Commonwealth v. Guzman, 44 A.3d 688, 692-93 (Pa.Super. 2012)

(internal citations and quotation marks omitted).

      In the instant case, Appellant, the Commonwealth, and trial court all

agree that Officer Kondrosky initiated an investigative detention, rather than

a mere encounter, when he exited his vehicle and told Appellant to stop.

Our review of the record supports that legal determination.             Officer

Kondrosky initially testified that Appellant fled immediately after the officer

merely requested to speak with Appellant. See N.T. Suppression Hearing,

5/17/16, at 12. That would have constituted a mere encounter. See, e.g.,

Commonwealth v. Young, 162 A.3d 524, 529 (Pa.Super. 2017) (holding

three officers’ approaching and questioning the defendant on a public street

was a mere encounter). However, Officer Kondrosky clarified, after review

of his affidavit of probable cause, that he ordered Appellant to stop before

requesting to speak with him. See N.T. Suppression Hearing, 5/17/16, at

20-21. Hence, Appellant was subject to an investigative detention from the

time Officer Kondrosky ordered him to stop. See, e.g., Commonwealth v.

Ranson, 103 A.3d 73, 77 (Pa.Super. 2014) (“Our Supreme Court has held

that where a citizen approached by a police officer is ordered to stop . . .

obviously a stop occurs.” (citation and internal quotation marks omitted)).

      Appellant, noting that Officer Kondrosky testified at the suppression

hearing that it was only after Appellant was instructed to stop that he

reached for his hip and ran, see N.T. Suppression Hearing, 5/17/16, at 20-

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21, contends that the officer lacked reasonable suspicion to order him to

stop. Appellant’s brief at 27.

      In order to determine whether the police officer had reasonable
      suspicion, the totality of the circumstances must be considered.
      In making this determination, we must give due weight to the
      specific reasonable inferences the police officer is entitled to
      draw from the facts in light of his experience. Also, the totality
      of the circumstances test does not limit our inquiry to an
      examination of only those facts that clearly indicate criminal
      conduct. Rather, even a combination of innocent facts, when
      taken together, may warrant further investigation by the police
      officer.

Commonwealth v. Raglin, 178 A.3d 868, 872 (Pa.Super. 2018) (internal

citations and quotation marks omitted).

      Appellant claims that Officer Kondrosky detained Appellant solely

based upon a vague, incomplete description given by the alleged burglary

victim   through   another   officer   without   indication   of    how   fresh   the

information was. Appellant’s brief at 32-33. Appellant argues that such is

insufficient to constitute reasonable suspicion. We disagree.

      The totality of relevant circumstances are as follows. At approximately

12:45 a.m., Officer Kondrosky was dispatched to a residence with which he

was familiar, due to its being the scene of prior burglaries, based upon the

report of a new attempted burglary. N.T. Suppression Hearing, 5/17/16, at

6. Another officer had arrived at the scene first, obtained descriptions of the

attempted burglars from the victim, and broadcast the descriptions via radio.

Id. at 16.    Officer Kondrosky drove around the area near the residence

looking for a black male in a light-colored sweat suit.            Minutes later, he

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spotted Appellant, a black male in a light-colored sweat suit, walking in front

of an establishment two blocks away from the victim’s residence. Id. at 10.

He lost sight of Appellant, but found him thirty seconds later, walking in an

alley that had no lights and was not commonly travelled because it lead to

only one occupied residence. Id. at 11.

      We see no error of law of abuse of discretion in the suppression court’s

finding that the following facts “available to the officer at the moment of the

intrusion [would] warrant a man of reasonable caution in the belief” that an

investigative detention was appropriate. Commonwealth v. Mackey, 177

A.3d 221, 229 (Pa.Super. 2017) (citation and internal quotation marks

omitted).   A man fitting the description of a known, identified victim was

spotted in the immediate vicinity of the attempted burglary, walking away

from the victim’s residence, and, after a marked police vehicle passed him,

he left the street, in the middle of the night, for an unlit, rarely-used alley.

While none of those facts alone is indicative of criminal activity, this

“combination of innocent facts, when taken together, . . . warrant[ed]

further investigation by the police officer.”        Raglin, supra at 872.

Compare Commonwealth v. Smith, 172 A.3d 26, 34 (Pa.Super. 2017)

(concluding officers had reasonable suspicion to stop Smith where he met

the description of a suspect obtained from a surveillance video, and was in

close proximity to location of drug transaction in an area known for a high

volume of drug activity), with Commonwealth v. Morrison, 166 A.3d 357,


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366 (Pa.Super. 2017) (holding officers did not have reasonable suspicion to

stop Morrison, who was walking down the street at approximately 8:30 p.m.,

five blocks from the site of a suspected robbery, where the only bases for

the stop were a report from unknown source who offered a description of the

suspect not wholly consistent with Morrison’s appearance, and the fact that

Morrison was nervous as the officers approached him).

       Thus, Officer Kondrosky had reasonable suspicion to order Appellant to

stop   for   questioning.   Further,   Appellant   acknowledges   that   Officer

Kondrosky had the requisite suspicion to seize him after Appellant grabbed

at his waistband in a manner consistent with hiding a firearm and fled.

Appellant’s brief at 19-20. Accordingly, no relief is due.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2018




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