J-S40010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

MICHAEL D. TWYMAN

                          Appellant                  No. 2400 EDA 2015


            Appeal from the Judgment of Sentence July 8, 2015
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0002588-2014


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                               FILED JULY 15, 2016

      Michael D. Twyman appeals from the July 8, 2015 judgment of

sentence of three years probation imposed by the trial court after a jury

found Appellant guilty of possession of a controlled substance (“possession”)

and possession of drug paraphernalia (“paraphernalia”).       Counsel filed a

petition to withdraw from representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.

      On July 26, 2014, Mr. John M. Moss, a victim in a recent shooting,

contacted Coastesville city police to report that he witnessed his assailant in

a particular deli.   Mr. Moss provided the police with a description of his

attacker, and after being transported to the police station, identified the
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suspect from a photographic array.           The police then provided this

description, and the suspect’s last known location, to patrol units in the area.

      Shortly thereafter, Officer Joseph Norcini confronted Appellant because

Appellant matched the description provided by Mr. Moss, and was walking

within a block of the deli where the suspect was last seen. Officer Norcini

initiated an investigatory stop to determine whether Appellant was the

reported shooting suspect.      Upon confronting Appellant, Officer Norcini

asked Appellant to identify himself. Appellant refused to do so. Noting that

Appellant kept putting his hands in his pockets, and fearing for his own

safety, Officer Norcini requested that Appellant position his hands on the

trunk of the police cruiser. Believing he had encountered an armed suspect,

Officer Norcini approached Appellant to frisk him for concealed weapons. As

Officer Norcini advanced, Appellant fled.

      Police officers apprehended Appellant following a short foot pursuit. A

search incident to arrest revealed Appellant possessed thirty-six bags

containing a white substance, a large amount of cash, and a cell phone.

Field testing confirmed the white substance was cocaine.

      The Commonwealth charged Appellant with possession with intent to

deliver a controlled substance, possession of a controlled substance,

possession of drug paraphernalia, flight to avoid apprehension, trial or

punishment, and resisting arrest.      Appellant filed a motion to suppress

physical evidence arguing that Officer Norcini lacked reasonable suspicion to

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detain and frisk him. Following a hearing, the trial court denied Appellant’s

motion.

      Subsequently, a jury found Appellant guilty of possession and

paraphernalia.      The court sentenced him to three years probation for

possession, and a concurrent period of one year probation for paraphernalia.

Appellant filed a timely notice of appeal. In lieu of a Rule 1925(b) statement

of errors complained of on appeal, counsel filed a statement of intent to file

an Anders brief pursuant to Pa.R.C.P. 1925(d)(4).                The trial court then

issued its 1925(a) opinion.

      Appellant’s    counsel   now   files   a   petition   to    withdraw   and   an

accompanying Anders brief, asserting that there are no non-frivolous issues

to be reviewed. In the Anders brief, counsel set forth the following as the

issue arguably supporting an appeal:         “Did the trial court err in denying

Appellant’s motion to suppress physical evidence?” Anders brief at 2.

      As we do not address the merits of issues raised on appeal without

first reviewing a request to withdraw, we evaluate counsel’s petition to

withdraw at the outset.        Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc).           Counsel must meet three procedural

requirements in order to withdraw: 1) petition for leave to withdraw and

state that, after making a conscientious examination of the record, counsel

has concluded that the appeal is frivolous; 2) provide a copy of the Anders

brief to the defendant; and 3) inform the defendant that he has the right to

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retain private counsel or raise, pro se, additional arguments that the

defendant deems worthy of the court’s attention. Id.

        Counsel’s petition to withdraw provides that she made a conscientious

examination of the record and concluded that the appeal is wholly frivolous.

Counsel advised Appellant that she was withdrawing and furnished him with

copies of the petition to withdraw and the Anders brief.              Furthermore,

counsel instructed Appellant that he had the right to retain new counsel and

expressed that he could proceed pro se and raise any issues he believed this

Court should consider. The letter to Appellant is attached to the petition to

withdraw.      Hence, we find counsel has adequately complied with the

procedural requirements of Anders.

        We   now   consider   whether    counsel’s   Anders   brief    meets   the

substantive elements of Santiago. Pursuant to Santiago, an Anders brief

must:

        (1) provide a summary of the procedural history and facts, with
        citations to the record; (2) refer to anything in the record that
        counsel believes arguably supports the appeal; (3) set forth
        counsel’s conclusion that the appeal is frivolous; and (4) state
        counsel’s reasons for concluding that the appeal is frivolous.
        Counsel should articulate the relevant facts of record, controlling
        case law, and/or statutes on point that have led to the
        conclusion that the appeal is frivolous.

Santiago, supra at 361.

        Counsel summarized the procedural posture and factual background of

the case with citations to the record. She also presented argument tending



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to support the appeal.     Nevertheless, counsel concludes that Appellant’s

appeal is frivolous, setting forth reasons in support of that position, and case

law that holds that his issue would not entitle him to relief.       Therefore,

counsel has complied with the requirements of Anders/Santiago.

      We now proceed to examine the issue presented by counsel in the

Anders brief.   In cases involving a review of the denial of a defendant’s

suppression motion, we are subject to the following standard of review:

      [An appellate court’s] 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, [the appellate
      court] is bound by [those] 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 courts below are subject to []
      plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015)

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

citations and quotation marks omitted)).

      Initially, we observe that, in evaluating an interaction between law

enforcement and other citizens, Pennsylvania courts look to whether the



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interaction is a mere encounter, an investigatory detention, or a custodial

detention.   A mere encounter does not require police to have any level of

suspicion that the person is engaged in wrongdoing.       Commonwealth v.

Downey, 39 A.3d 401, 405 (Pa.Super. 2012). Such an encounter does not

compel the party to stop or respond.          Id.   An investigative detention

subjects an individual to a stop and a short period of detention.           Id.

However, to conduct an investigative detention, police must have reasonable

suspicion of criminal activity.   Id.   Finally, a custodial detention must be

supported by probable cause. Id.

       Neither party disputes that Officer Norcini conducted an investigatory

stop when he first approached Appellant.      With regard to an investigatory

stop

       a police officer may, short of an arrest, conduct an investigative
       detention if he has a reasonable suspicion, based upon specific
       and articulable facts, that criminality is afoot. The fundamental
       inquiry is an objective one, namely, whether the facts available
       to the officer at the moment of the intrusion warrant a man of
       reasonable caution in the belief that the action taken was
       appropriate. This assessment, like that applicable to the
       determination of probable cause, requires an evaluation of the
       totality of the circumstances, with a lesser showing needed to
       demonstrate reasonable suspicion in terms of both quantity or
       content and reliability.

Commonwealth v. Shabezz, 129 A.3d 529, 534 (Pa.Super. 2015) (citation

omitted, internal brackets omitted).

       Following Appellant’s flight and apprehension, Officer Norcini detained

and arrested Appellant.      The probable cause necessary for a custodial

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detention is “made out when the facts and circumstances which are within

the knowledge of the officer at the time of the arrest, and of which he has

reasonably trustworthy information, are sufficient to warrant a man of

reasonable caution in the belief that the suspect has committed or is

committing a crime.”      Commonwealth v. Fleet, 114 A.3d 840, 854

(Pa.Super. 2015) (citation omitted). The pertinent question “is not whether

the officer’s belief was correct or more likely true than false [but] rather, we

require only a probability, and not a prima facie showing, of criminal

activity.” Id. Similar to our reasonable suspicion analysis, “In determining

whether probable cause exists, we apply a totality of the circumstances

test.” Id.

      Specifically, Appellant argues that the description provided by Mr.

Moss fit a large number of young men in the city of Coatesville.       Anders

brief at 16. In addition, Appellant continues, it is not clear how much time

passed between Mr. Moss’s report and Officer Norcini’s observation of

Appellant.    Id.   Appellant maintains that Officer Norcini did not have

reasonable suspicion to believe Appellant committed a crime and that he was

presently armed.    Id.    Therefore, Appellant concludes that the physical

evidence arising from his detention should be suppressed. Alternatively, if

the court were to find Officer Norcini had reasonable suspicion to detain and

frisk Appellant, then he contends that the police lacked probable cause to

effectuate an arrest. Id. at 17.

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      Instantly, Mr. Moss provided a description of his assailant to the police.

He depicted his attacker as a black male, approximately thirty years old, six

feet tall, 180-200 pounds in weight, and wearing a black hat, white t-shirt,

and either khaki capri shorts or pants. Mr. Moss then identified his assailant

from a photographic array provided by the police. This information and the

suspect’s last known location were communicated to nearby patrol units.

      Shortly thereafter, and on the basis of this information, Officer Norcini

approached Appellant, who was a block from the suspect’s last known

location, to question him regarding his identity. At that time, Appellant, a

black man similar in age, height, and weight to the shooting suspect, was

wearing a black hat, a white t-shirt, and khaki capris. Upon being stopped,

Appellant refused to identify himself, fidgeted with his pockets, and failed to

keep his hands on the police cruiser as requested by the officer.        Officer

Norcini, believing Appellant to be the perpetrator of a violent crime,

approached him to conduct a frisk for concealed weapons. Appellant fled the

scene before Officer Norcini could effectuate the pat down. The suppression

court found the officers who testified at the hearing to be credible, and

based on the above information, concluded that the officers lawfully detained

and arrested Appellant.

      We agree.      In light of the totality of the circumstances, the

suppression court had ample support in the record to find that Officer Norcini

had reasonable suspicion to detain Appellant, and probable cause to arrest

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him.   Mr. Moss provided a reliable and specific description of the shooting

suspect.    Appellant’s gender, race, age, height, weight, and clothing

matched this description. In addition, Officer Norcini approached Appellant

shortly after Mr. Moss made his report, and only one block from the

suspect’s last known location.    This information would lead an objectively

reasonable police officer to suspect Appellant was the shooting suspect, and

in light of Appellant’s behavior, that he was presently armed. These facts,

coupled    with   Appellant’s   subsequent   flight,   supported   the   officer’s

reasonable suspicion to stop Appellant, and probable cause for his arrest.

See Commonwealth v. Legg, 392 A.2d 801, 803 (Pa.Super. 1978) (finding

flight alone not sufficient to establish probable cause to arrest, but flight

coupled with additional facts pointing to suspect’s guilt may establish

probable cause). The suppression court did not err.

       We have reviewed the certified record and find no other preserved

issues or non-waivable claims that might be advanced that are meritorious.

Accordingly, we agree that Appellant’s appeal is wholly frivolous.

       Petition of Maria Heller, Esq., to withdraw is granted.     Judgment of

sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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