J-S04010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANGEL APONTE,

                            Appellant                 No. 2842 EDA 2014


          Appeal from the Judgment of Sentence September 5, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001449-2014


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 10, 2017

       Appellant, Angel Aponte, appeals from the September 5, 2014

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County following a stipulated waiver trial. We affirm.

       The trial court summarized the facts of the crime as follows:1

            At the suppression hearing held on May 29, 2014, the
       Defendant moved for suppression of the firearm recovered in his
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   The issue in this case assails the trial court’s denial of Appellant’s
suppression motion. When the matter herein proceeded to a stipulated
waiver trial following the suppression hearing, the suppression testimony
was incorporated and made part of the trial record. Thus, the trial court’s
summarization of the facts utilizes the evidence presented at the
suppression hearing that ultimately was incorporated in the trial record.
See In re L.J., 79 A.3d 1073 (Pa. 2013) (scope of review in suppression
matters is confined to the suppression hearing record).
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       case, claiming that the police did not have reasonable suspicion
       to stop him and that his flight after that unlawful stop, resulted
       in his forced abandonment of a firearm under Commonwealth v.
       Matos[, 672 A.2d 769 (Pa. 1996)] and therefore, the firearm
       should be suppressed.         The evidence presented at the
       suppression hearing can be summarized as follows.

             On January 18, 2014, at approximately 8:30 p.m., Officer
       [Christopher] Shevlin and his partner, Officer Gorman,[2] were in
       uniform, in a marked police vehicle, on routine patrol in the 25 th
       Police District, in the general area of Gurney and Mascher
       Streets, Philadelphia, Pennsylvania.4 Officer Shevlin was quite
       familiar with this area. He had been assigned to the 25 th District
       for approximately seven (7) years and he was commonly
       assigned to patrol the area of Gurney and Mascher Streets.
       Officer Shevlin described the area as a high crime, high narcotics
       area that generated a lot of calls. He testified that he had made
       more than … 100 arrests in the area, for offenses involving
       narcotics, guns and assaults. N.T. 5/29/2014 at 4-6, 11.
              4
                Officer Shevlin was the recorder, sitting in the
              passenger seat. N.T. 5/29/2014 at 6,13.

              Officers Shevlin and Gorman were traveling westbound on
       Gurney Street, towards Mascher Street, when Officer Shevlin
       observed a crowd and what seemed like a commotion on
       Waterloo Street.5 At that time, Officer Shevlin also observed the
       Defendant running eastbound on Gurney Street, towards the
       police vehicle and the crowd on Waterloo Street. The Defendant
       was running with his hands and arms closed. The Defendant
       was approximately two car lengths from the police vehicle, and a
       half block from the crowd on Waterloo Street, when he looked
       directly at the police vehicle, completely stopped in the tracks of
       running, turned right around and started running back towards
       Mascher Street. Id. at 6-7, 8-9.
              5
                 Officer Shevlin described the crowd as “an
              abnormally large amount of people,” noting that as
              they were driving [past] Waterloo Street, both he
              and Officer Gorman uttered, “There’s a lot of people
____________________________________________


2
    Officer Gorman’s given name is not included in the certified record.



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           on that block.” [N.T., 5/29/14,] at 14. At that
           point, the officers were in a state of motion—
           traveling westbound on Gurney, towards Mascher.
           Id. They were most likely going back to investigate
           the crowd on Waterloo Street. Id.

           Officer Shevlin found it suspicious that the Defendant was
     running full fledged, made eye contact with the police, turned
     around and ran in the opposite direction. Officer Shevlin wanted
     to investigate.    Officers Shevlin and Gorman turned onto
     Mascher Street, where Officer Shevlin observed the Defendant
     stop near a vehicle.6      The officers pulled alongside of the
     Defendant, but remained in their vehicle, which was
     approximately 10 feet from the Defendant. Speaking through
     his car window, Officer Shevlin asked the Defendant to come
     over for a second. The Defendant backed away, with his hands
     close to his body. Officer Shevlin did not know if the Defendant
     had anything or why he was running from the police. He
     decided to exit the vehicle and investigate further. Id. at 7, 10,
     15.
           6
             There was no indication that the officers followed
           the Defendant at a high rate of speed or that they
           activated their emergency lights or siren.

           As Officer Shevlin opened the door of his vehicle, the
     Defendant backed up further, put his hands towards his hoodie
     pocket, at his front waist area, like he was holding something in
     and he spontaneously stated that he did not have anything.7
     Officer Shevlin began to walk closer to the Defendant and the
     Defendant took off running southbound on Mascher Street.
     Officer Shevlin pursued the Defendant on foot. During the
     pursuit, Officer Shevlin observed the Defendant throw a heavy
     chrome object, which the Defendant had pulled from the front of
     his body. The object landed in a yard/alley area, making a
     sound as it hit the fence. The Defendant was subsequently
     apprehended. Id. at 7-8, 10-11.
           7
             Officer Gorman had remained seated in the police
           vehicle, which was approximately 10 feet from the
           Defendant[,] and neither officer had drawn [his]
           weapon[]. Id. at 10-11.

Trial Court Opinion, 1/14/16, at 2–3 (one footnote omitted).

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      The trial court summarized the procedural history as follows:

            On January 18, 2014, Angel Aponte (the Defendant) was
      arrested and charged with possession of a firearm prohibited,
      firearm not to be carried without a license and carrying a firearm
      in public.1 On April 22, 2014, the Defendant filed a motion to
      suppress the firearm recovered in association with his case.
      Following a hearing on the motion and a stipulated waiver trial
      held on May 29, 2014, this [c]ourt found the Defendant guilty of
      the all crimes charged.2 On September 5, 2014, this [c]ourt
      sentenced the Defendant to five to ten years of incarceration for
      the crime of possession of a firearm prohibited, with no further
      penalty imposed on the remaining two crimes. On October 3,
      2014, the Defendant filed a notice of appeal. On November 7,
      2014, this [c]ourt filed a 1925(b) Order. On December 1, 2014,
      Defendant filed a 1925(b) Statement.
            1
               18 [Pa.C.S.]    §§     6105,   6106[,]   and   6108,
            respectively.
            2
               At the suppression hearing, the Commonwealth
            presented the testimony of Philadelphia Police Officer
            Christopher Shevlin. The Defendant did not present
            any evidence. N.T 5/29/2014 at 3-16. This [c]ourt
            denied the Defendant’s suppression motion. Id. at
            19-20.       Immediately thereafter, the matter
            proceeded to a stipulated waiver trial, wherein
            Officer Shevlin’s testimony was incorporated and
            made part of the trial record.       Additionally, the
            parties stipulated that the police recovered a [.]22
            caliber handgun that was loaded and operable and
            that the Defendant was prohibited from possessing a
            firearm due to a prior conviction for possession with
            intent to deliver. Id. at 20-24.

Trial Court Opinion, 1/14/16, at 1.

      Appellant raises the following single issue for our review:

         1. Did the [c]ourt err when it found that there was
            reasonable suspicion for the officers to stop [Appellant] for
            investigation when they merely saw him running in their
            direction and then change direction?


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Appellant’s Brief at 4.

      The standard of review an appellate court applies when considering an

order denying a suppression motion is well established.

      In evaluating a suppression ruling, we consider the evidence of
      the Commonwealth, as the prevailing party below, and any
      evidence of the defendant that is uncontradicted when examined
      in the context of the record. Commonwealth v. Sanders, 42
      A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the
      factual findings of the suppression court where the record
      supports those findings and may only reverse when the legal
      conclusions drawn from those facts are in error. Id.

Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015), appeal

denied, 125 A.3d 1199 (Pa. 2015).

      “‘Interaction’ between citizens and police officers, under search
      and seizure law, is varied and requires different levels of
      justification depending upon the nature of the interaction and
      whether or not the citizen is detained.” Commonwealth v.
      DeHart, 745 A.2d 633, 636 (Pa. Super. 2000). The three levels
      of interaction are: mere encounter, investigative detention, and
      custodial detention. Id.

            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. The
            hallmark of this interaction is that it carries no
            official compulsion to stop or respond.

            In   contrast,    an   investigative    detention,   by
            implication, carries an official compulsion to stop and
            respond, but the detention is temporary, unless it
            results in the formation of probable cause for arrest,
            and does not possess the coercive conditions
            consistent with a formal arrest. Since this interaction
            has elements of official compulsion it requires
            reasonable suspicion of unlawful activity. In further
            contrast, a custodial detention occurs when the
            nature, duration and conditions of an investigative


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              detention become so coercive as to be, practically
              speaking, the functional equivalent of an arrest.

       Id. (internal citations and quotation marks omitted).

Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 664 (Pa. Super.

2015).

       At the suppression hearing, defense counsel indicated that he had no

witnesses to present.3        When the trial court requested the basis for his

suppression motion, counsel stated, inter alia: “In this case the police did

not have reasonable suspicion or probable cause to stop [Appellant] and that

his flight, after that unlawful stop, resulted in the throwing of the firearm,

which is a forced abandonment . . . .” N.T., 5/29/14, at 4.

       Appellant asserts on appeal that the trial court erred in failing to

suppress the gun because Officer Shevlin “was completely unable to

articulate reasonable suspicion to stop” Appellant.    Appellant’s Brief at 10.

In support, Appellant underscores Officer Shevlin’s testimony that when

Appellant saw police, he turned and ran the other way, and “it seemed

suspicious that he was running full fledged, and turned back around and ran

back the other way.”           N.T., 5/29/14, at 10; Appellant’s Brief at 14.

Appellant maintains that his act of running cannot be categorized as “flight.”

Appellant’s Brief at 15.
____________________________________________


3
   Because the defense did not present any witnesses at the suppression
hearing, “the Commonwealth’s evidence is essentially uncontradicted.”
Commonwealth v. Smith, 979 A.2d 913, 917–918 (Pa. Super. 2009).



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      At the conclusion of the suppression hearing, the trial court advanced

its findings of fact, as follows:

      On January 18, 2014, while in uniform and driving a marked
      vehicle, Officer Shevlin, with his partner, Officer Gorman, was
      operating a vehicle westbound [on Gurney Street] towards
      Mascher Street, when [Officer Shevlin] observed a large crowd.
      At that point, Officer Shevlin observed the defendant running
      towards the crowd. The defendant appeared to look directly at
      the police vehicle, turn[ed] around and r[a]n in the opposite
      direction. The defendant was eventually stopped and when
      Officer Shevlin asked [him] to come here, the defendant backed
      up and said, I don’t have anything and then ran southbound on
      Mascher Street.

            Officer Shevlin observed the defendant throw a chrome
      object into a yard/alley area. Officer Shevlin testified that he’s a
      seven-year veteran of the 25th Police District and describes the
      area of Gurney and Mascher as a high-crime, high-narcotics
      area. He participated in greater than 100 arrests for narcotics,
      guns, and assaults.

           I find that Officer Shevlin had reasonable suspicion, as the
      defendant fled in a high-crime area.

N.T., 5/29/14, at 19.

      Appellant’s argument includes an inaccurate and unsupported premise,

as well as being an incomplete description of the factors evaluated by police

in pursuing Appellant. Appellant contends that police observed nothing more

than Appellant running, whereupon he changed directions.        Appellant then

suggests that his subsequent abandonment of a loaded gun was coerced.

Thus, Appellant claimed that his flight was provoked by Officer Shevlin’s

approach when he had done nothing wrong. Appellant’s Brief at 6–7.




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      Instead, the testimony of record established that police came upon

Appellant running at night, clutching his waist area, in a high-crime, high-

narcotics area.   N.T., 5/29/14, at 5–6.   Officer Shevlin acknowledged to

defense counsel that police wanted to make sure Appellant was “okay” after

observing him running at night in the area where the commotion and crowd

had formed. Id. at 15. Upon observing police, Appellant turned and ran the

other direction. Id. at 7. When Appellant turned a corner and stopped near

a vehicle, police, still in their marked police cruiser, asked Appellant to

approach. Id. When Officer Shevlin exited the cruiser and stepped toward

Appellant, Appellant moved his hands “towards his hoodie pocket in his

jacket waist in the front” and spontaneously uttered, “I don’t have

anything.” Id. As Officer Shevlin approached, Appellant “took off running,”

and Officer Shevlin pursued him on foot.     Id.   When Appellant turned a

corner, the officer observed Appellant discard the chrome gun that was

ultimately retrieved. Id. at 7.

      Thus, the record supports the conclusion that the officers approached

Appellant to ask if he was okay as he ran near a commotion in a high-crime

location.   At this point, therefore, the interaction was a mere encounter.

When police asked Appellant to speak with them, and after spontaneously

announcing he did not “have anything,” Appellant took off running.     N.T.,

5/29/14, at 7.      The ensuing question, then, is whether Appellant’s

unprovoked flight when coupled with his unaccompanied presence in a high-


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crime area near a commotion and crowd, gave officers reasonable suspicion

to believe criminality was afoot so as to justify an investigative detention.

      In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States

Supreme Court held that a police officer is justified in reasonably suspecting

that an individual is involved in criminal activity when that individual: (1) is

present in a high crime area, as here, and (2) engages in unprovoked,

headlong flight after noticing the police. Id. at 124–125.

      Our Supreme Court has discussed such circumstances in In re D.M.,

781 A.2d 1161 (Pa. 2001):

      [W]e see no reason at this juncture to embrace a standard other
      than that adhered to by the United States Supreme Court.
      Appellant is correct that our case law has questioned the
      relevancy of flight in reviewing the totality of the circumstances.
      Indeed, in our original opinion in D.M., we concluded that flight
      was not a factor that would weigh in favor of finding reasonable
      suspicion or probable cause under the totality of the
      circumstances test. [Interest of D.M., 743 A.2d 422, 426 (Pa.
      1999)].     Nevertheless, this conclusion has been directly
      contradicted by the United States Supreme Court’s recent
      decision in Wardlow.

             In Wardlow, the Chicago police sent a four-car caravan
      into a high crime area to investigate drug activity. Wardlow,
      528 U.S. at 121, 120 S.Ct. 673. One of the officers in the last
      vehicle observed the respondent on a corner with an opaque bag
      in his hand. Id. at 121–22, 120 S.Ct. 673. 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. Id. at 122, 120 S.Ct. 673.
      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 [v. Ohio, 392 U.S. 1 (1968)] stop. Id. at
      123, 120 S.Ct. 673.


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            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.” Id. at 124, 120 S.Ct.
     673. 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.       Id.    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
     “headlong flight—wherever it occurs—is the consummate
     act of evasion....” Id. Based upon respondent’s unprovoked
     flight in a 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. In light of
     this recent case law, it is clear that our original analysis in this
     case was contrary to the United States Supreme Court’s
     subsequent analysis in Wardlow.

D.M., 781 A.2d at 1163–1164 (emphasis added).             This Court recently

affirmed the denial of suppression where the appellant exhibited evasive,

unprovoked flight in a high crime area. Commonwealth v. McCoy, 2017

PA Super 20, ___ A.3d ___ (Pa. Super. filed January 27, 2017). We held

therein that the appellant therefore was not entitled to suppression of the

gun he discarded during his flight. Id. at *4.

     We conclude that the trial court properly denied Appellant’s motion to

suppress.   In assessing whether an officer had reasonable suspicion to

justify an investigatory detention, we must consider the totality of the

circumstances.   Commonwealth v. Walls, 53 A.3d 889, 893 (Pa. Super.

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2012). While mere flight is not enough to constitute reasonable suspicion,

Commonwealth v. Martinez, 588 A.2d 513, 514 (Pa. Super. 1991), fleeing

from an officer may constitute the basis for reasonable suspicion in certain

instances, as a “combination of innocent facts, when taken together, may

warrant further investigation by the police officer.”        Commonwealth v.

Carter, 105 A.3d 765, 772 (Pa. Super. 2014). Additionally, the court must

afford weight to an officer’s perception of the circumstances in light of the

officer’s experience. Id. at 773.

      Accordingly, based upon the foregoing, we reject Appellant’s claim that

the suppression court erred by denying his motion to suppress. The totality

of the circumstances demonstrates that the police officers, in fact, had

reasonable suspicion to believe that Appellant was engaged in criminal

activity when they began their pursuit of him following his second flight in a

high crime area. As Officers Shevlin and Gorman were attempting to effect

a lawful investigatory detention at the time Officer Shevlin observed

Appellant   discard   his   loaded   gun,   the   seizure   of   the   firearm   was

constitutional, and Appellant’s suppression motion was properly denied.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




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