J-A11024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

AKEEM METTS,

                            Appellant              No. 618 EDA 2014


          Appeal from the Judgment of Sentence of February 2, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0005184-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                            FILED JUNE 05, 2015

       Appellant, Akeem Metts, appeals from the judgment of sentence

entered on February 2, 2014 following his bench trial convictions for

possession of a controlled substance, possession with intent to deliver a

controlled substance (PWID), and conspiracy.1     Upon careful review, we

affirm the convictions, but vacate Appellant’s sentence and remand for

resentencing.

       We briefly summarize the facts of this case as follows. On April 25,

2013, at 8:45 p.m., Officer Marlowe Freeman, a uniformed officer with the

City of Chester Police Department, was speaking with undercover Officer

George Gizzi in a parking lot at 9th Street and the Avenue of the Americas
____________________________________________


1
   35 P.S. § 780-113(a)(16), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A.
§ 903, respectively.
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when they heard gunshots a couple of blocks away. Both officers proceeded

separately to the 900 block of Madison Avenue where the shots allegedly

originated.   Officer Freeman was the first to arrive.   He observed a blue

Mercury automobile occupied by two individuals pull out of a parking space

and then quickly pull back in to its original position. Appellant was driving.

Officer Freeman approached the car from the front and told the occupants to

show their hands. Both occupants failed to do so and were seen reaching

toward the center of the front seat. Officer Freeman drew his weapon and

ordered the occupants to show their hands and exit the vehicle. Officer Gizzi

arrived on the scene and heard Officer Freeman shouting, “Show me your

hands.”    Appellant and his passenger put their hands up and exited the

vehicle.   Officer Gizzi saw a package of glassine bags partially wrapped in

aluminum foil sitting on the front passenger seat of the vehicle.          He

suspected the package contained marijuana and tests later confirmed his

suspicion. The police arrested both occupants of the vehicle and, in a search

incident to that arrest, recovered cocaine from the passenger.            The

Commonwealth charged Appellant with the aforementioned crimes.

      On September 6, 2013, Appellant filed a motion to suppress the

recovered evidence. The trial court held a hearing on October 3, 2013. The

trial court denied the motion and held a bench trial on December 30, 2013.

On December 31, 2013, the trial court found Appellant guilty of all charges.

On February 12, 2014, the trial court sentenced Appellant to one to two

years of imprisonment for PWID with a consecutive term of two years of

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probation.    Additionally, the trial court sentenced Appellant to consecutive

terms of probation of two years of probation for possession of a controlled

substance and one year of probation for conspiracy. In sum, the trial court

imposed an aggregate term of one to two years of imprisonment, followed

by five years of probation. This timely appeal resulted.2

        On appeal, Appellant raises two claims for our consideration.    First,

Appellant asserts that the trial court erred in refusing to grant suppression

because he was subject to a custodial arrest when he was seized without


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2
    The trial court summarized the procedural history that followed:

          On February 18, 2014, Appellant filed a timely pro se
          [notice of] appeal. [The trial court] issued a [Pa.R.A.P.]
          1925(b) [o]rder to Appellant’s trial counsel. Instead of
          filing a [Rule] 1925(b) statement, trial counsel asked to
          withdraw on the basis that he was appointed as trial counsel
          and did not feel that he could best represent Appellant at
          the appellate level, which the [trial court] granted.

          [The trial court] issued an order on March 14, 2014,
          directing the Delaware County Office of the Public Defender
          to determine if Appellant would qualify for representation.
          The Office of the Public Defender entered its appearance on
          March 31, 2014. Due to the change of counsel, [the trial
          court] issued another [Rule] 1925(b) statement and ordered
          it to be returned on April 21, 2014. [The trial court] wrote
          to [this Court] and respectfully asked for a sixty[-]day
          continuance from the date the [Rule] 1925(b) statement
          was received. Appellant filed his [Rule] 1925(b) statement
          on April 21, 2014.      [The trial court issued an opinion
          pursuant to Pa.R.A.P. 1925(a) on June 23, 2014].

Trial Court Opinion, 6/23/2014, at 3-4.



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probable cause or reasonable suspicion in violation of the United States and

Pennsylvania constitutions. Next, Appellant maintains that his sentence of

two years of probation for simple possession should be vacated because the

offense of simple possession merges with PWID.     See Appellant’s Brief at 5.

      In his first issue presented, Appellant argues that the trial court erred

by failing to grant suppression.   He essentially asserts that the interaction

amounted to a custodial arrest because the police approached the vehicle

with guns drawn and did so without probable cause or reasonable suspicion.

More specifically, he claims “that [t]here was no suspicion of a motor vehicle

violation” and police effectuated “a seizure without reasonable suspicion

because [Officer] Freeman’s sole reason for the [vehicular] stop was the

failure of the driver to attempt flight[.]” Id. at 11. Appellant argues that

the police seized him before he failed to respond to the police commands to

raise his hands and he allegedly engaged in furtive motions.        Id. at 18.

Appellant further contends there was no evidence to connect him to the

gunshots heard by police except that he may have been on the same street.

Id. at 19.

      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


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        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. 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 our plenary review.

        Moreover, appellate courts are limited to reviewing only the
        evidence presented at the suppression hearing when
        examining a ruling on a pre-trial motion to suppress.

        It is well-established that there are three categories of
        interaction between citizens and police officers. As our
        Supreme Court has clearly articulated:

            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.

Commonwealth v. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014)

(internal citations omitted).

      In viewing the totality of the circumstances, we are mindful of the

following legal principles. “If, during the course of a valid investigatory stop,

an officer observes unusual and suspicious conduct on the part of the

individual which leads him to reasonably believe that the suspect may be

armed and dangerous, the officer may conduct a pat-down of the suspect's

outer garments for weapons.”       Commonwealth v. Mack, 953 A.2d 587,

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590 (Pa. Super. 2008) (citation omitted). “In order to establish reasonable

suspicion, the police officer must articulate specific facts from which he could

reasonably infer that the individual was armed and dangerous.” Id. (citation

omitted).   When assessing the validity of a frisk for officer safety, “we

examine the totality of the circumstances, giving due consideration to the

reasonable inferences that the officer can draw from the facts in light of his

experience, while disregarding any unparticularized suspicion or hunch.” Id.

“[W]hether the defendant was located in a high crime area [may] support[]

the existence of reasonable suspicion.”     Commonwealth v. Foglia, 979

A.2d 357, 361 (Pa. Super. 2009). “Evasive behavior also is relevant in the

reasonable-suspicion mix.” Id. “[I]f a suspect engages in hand movements

that police know, based on their experience, are associated with the

secreting of a weapon, those movements will buttress the legitimacy of a

protective weapons search of the location where the hand movements

occurred.” Id.; see also Commonwealth v. Tuggles, 58 A.3d 840, 844

(Pa. Super. 2012) (“Where a person performs an activity that is indicative of

an attempt to secrete a weapon, that movement, regardless of whether it is

singular or multiple, can support a belief that the person has a gun.”). “An

overt threat by the suspect or clear showing of a weapon is not required for

a frisk. It is well-established that the officer need not be absolutely certain

that the individual is armed; the issue is whether a reasonably prudent man

in the circumstances would be warranted in the belief that his safety or that




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of others was in danger.” Mack, 953 A.2d at 591 (citation, quotations and

brackets omitted).

     Under the facts of this case, the trial court determined that Appellant

was the subject of an investigative detention at the time that the police

commanded Appellant to stop reaching toward the center of the automobile

and to put his hands up. Trial Court Opinion, 6/23/2014, at 4-5.    Because a

reasonable person in Appellant’s position would not feel free to depart, we

agree with the trial court’s legal conclusion. Thus, the issue is whether the

officers possessed reasonable suspicion that Appellant was either armed and

dangerous or engaged in criminal conduct when they issued their command.

Ransom, 103 A.3d at 77.     The trial court found, in assessing the totality of

the circumstances, that police had reasonable suspicion to suspect that

Appellant could be armed or that criminal activity was afoot based upon the

following considerations:   (1) the high crime area was known for violent

activity; (2) officers heard shots fired and responded to the area where the

shots originated within seconds; (3) Officer Freeman opined that Appellant

was attempting to flee when he hastily pulled out of a parking space, but

pulled back in due to police presence; (4) Appellant was reaching towards

the center of the automobile despite repeated requests by police to stop,

and; (5) because police were responding to shots fired, the police had a

reasonable basis to remove the occupants and check the vehicle to ensure

their own safety. Trial Court Opinion, 6/23/2014, at 5.   Upon review, again,

we agree.

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         Officer Freeman testified that he was in uniform and on-duty in a high

crime area at 8:45 p.m. on the evening in question. N.T., 10/2/2013, at 7-

8. He was “one block away” when he heard “three shots fired.” Id. at 8-9.

Officer Freeman “radioed to dispatch what [he] had heard and the direction

it was coming from” and he and “two other officers in individual cars

responded to that area[]” within “a matter of seconds.”        Id. at 10.   “In

responding to the area, [Officer Freeman] looked for [] distinctive things

[like] people running or occupied vehicles trying to get out of the area[,

…b]ecause normally when you have that particular situation like that, people

are definitely leaving, meaning the shooters are trying to quickly get out of

the area after they committed the crime.” Id. “As [Officer Freeman] was

coming up to the [area, a blue] Mercury attempted to pull out, but quickly

pulled back and parked.”      Id. at 11.   Officer Freeman testified that “what

aroused [his] suspicion was they were about to pull out, but once they saw

the police cars coming they immediately pulled back over and parked.” Id.

at 29.

         Officer Freeman “exited the [police] car and [] approach[ed the other

vehicle] from the front” and Appellant looked at Officer Freeman. Id. at 11-

12.      As Officer Freeman approached the vehicle, he asked the vehicle

occupants, including Appellant, to show their hands because “[t]hey were

reaching towards each other, more so towards the center of the seat.” Id.

at 13. Initially, they did not comply. Id. Officer Freeman testified that he

“believe[d] they heard [him] and they didn’t comply until [he] showed them,

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until [he] pointed [a] gun at them.”             Id. at 21.   When Officer Freeman

ordered the occupants out of the car at gunpoint, they obeyed. Id. at 13-

14. Officer Freeman testified he was concerned for his safety and the other

officers’ safety “because [the officers] did not know what [the passengers]

were concealing or retrieving[.]” Id. at 14.          Once the passengers alighted

from the vehicle, the police recovered individual bags of marijuana packaged

together and loosely wrapped in “tin foil [that] wasn’t fully covering the

contents of the bags.” Id. at 15. At that point, police arrested Appellant

and the passenger.        Id. at 22, 27.       There were no other pedestrians or

vehicles in the area. Id. at 32. Officer Gizzi testified similarly. Id. at 34-

42. Officer Gizzi saw the package of narcotics on the front passenger seat.

Id. at 38, 41.

       Viewed in totality, in the light most favorable to the Commonwealth as

our standard requires, we discern no abuse of discretion or error of law in

the denial of Appellant’s suppression motion. This interaction amounted to

an investigatory detention or weapons frisk that required reasonable

suspicion.    Here, police heard gunshots during the early evening hours 3 and

____________________________________________


3
    The incident occurred at 8:45 p.m. N.T., 10/2/2013, at 8. Officer
Freeman testified that Appellant had activated the headlights on his vehicle.
Id. at 18. Although Appellant suggests that the headlights would have
impeded on the officer’s ability to observe activity within the vehicle, the
trial court credited the officer’s testimony and we have no basis to disturb
this finding.




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responded immediately to a high crime area from where the shots

emanated. It took them a matter of seconds to arrive and there were no

other people in the vicinity. Police immediately witnessed Appellant trying to

drive away.     However, upon seeing the marked police car and uniformed

police, Appellant parked his car and then began engaging in furtive

movements towards the center of the vehicle.4 He did not respond to police

commands.        The police, responding to gunshots and fearing for their

security, conducted a permissible weapons frisk for their safety. Once the

occupants of the car exited the vehicle, the police saw the contraband in

plain view. It was only then that police arrested Appellant.

       Appellant makes much about the fact that police drew their guns and

issued commands.          However, when the totality of the circumstances are

carefully examined, we conclude that the police acted with reasonable

suspicion.      Officer    Freeman      testified   without   contradiction   that   he

encountered Appellant’s vehicle in a high crime area when responding to

____________________________________________


4
     At trial, Appellant cross-examined Officer Freeman about alleged
inconsistencies in his testimony regarding the movements. N.T., 10/2/2013,
at 18-20. In the affidavit of probable cause, Officer Freeman said that
Appellant was reaching “toward the middle console.” Id. at 19. Defense
counsel suggested that there is no middle console in 1994 Mercury
automobiles. Id. at 19-20. Officer Freeman testified that those cars “have
armrests in the middle of the seats.” Id. at 20. “[I]t is the province of the
trier of fact to pass upon the credibility of witnesses and the weight to be
accorded the evidence produced. The factfinder is free to believe all, part or
none of the evidence.” Commonwealth v. Burkett, 830 A.2d 1034, 1038
(Pa. Super. 2003).



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shots fired. He was looking for an individual(s) who appeared to be fleeing

the scene. Appellant’s operation of his vehicle fit this description.        It struck

Officer Freeman as suspicious that that Appellant quickly re-parked after

seeing his marked police car arrive on the scene.                 Officer Freeman,

therefore, approached Appellant’s vehicle and issued commands.                 Those

actions were reasonable in preserving officer safety.         It was only after

Appellant refused to comply and continued to make furtive movements that

Officer Freeman pulled his weapon.           By this time, Officer Freeman had

reason to believe that criminal activity was afoot and that Appellant could be

armed and dangerous.          Thus, Appellant’s detention was constitutionally

justified.   For each of the foregoing reasons, we conclude that this

interaction amounted to an investigatory detention and/or weapons stop and

that, under the totality of circumstance the officers possessed the requisite

reasonable suspicion to support Appellant’s detention.                Accordingly,

Appellant’s first issue lacks merit.

      In his second issue presented, Appellant contends that his sentence is

illegal because the trial court should have merged his sentence for

possession of a controlled substance with his sentence for his PWID

conviction. Appellant’s Brief at 21. The Commonwealth concedes this error.

See Commonwealth’s Brief at 23-24. We agree that merger was applicable.

      Challenges    to   an    illegal   sentence   cannot   be    waived.       See

Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa. Super. 2014). “No crimes

shall merge for sentencing purposes unless the crimes arise from a single

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criminal act and all of the statutory elements of one offense are included in

the statutory elements of the other offense.” 42 Pa.C.S.A. § 9765.       Here,

there is no dispute that all of the crimes arose from one criminal act.

Moreover, this Court previously determined that simple possession of a

controlled substance merges with PWID for sentencing purposes.            See

Commonwealth v. James, 46 A.3d 776, 781 (Pa. Super. 2012) (citation

omitted).   Accordingly, Appellant is entitled to relief.   As such, we vacate

Appellant’s sentences and remand for resentencing.

       Convictions affirmed.      Sentences vacated.        Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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