J-A03008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    KRYSTAL PEREA                              :
                                               :
                      Appellant                :       No. 3455 EDA 2016

            Appeal from the Judgment of Sentence August 10, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-CR-0002181-2016


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 12, 2018

        Appellant, Krystal Perea, appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas, following her bench trial

conviction for possession of a controlled substance.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

           On January 21, 2016, Police Officer Kolb was on duty at
           approximately 4:45 p.m. in the vicinity of 5547 Walnut
           Street in Philadelphia. He was responding to a radio call
           [from an anonymous tip] for a person with a gun at 5500
           Walnut Street, described as [a] Hispanic male with a red
           hoodie, glasses[,] and carrying a black firearm. When
           [Officer Kolb] pulled up at the scene, he observed
           [Appellant], who had short shaved hair and was wearing a
           red–hooded sweatshirt and glasses─she looked like a male
           and matched the description of the flash. When Officer
           Kolb first saw [Appellant], [she] had her hand underneath
           her hooded sweatshirt in the waistband, and [Officer Kolb]
____________________________________________


1   35 P.S. § 780-113(a)(16).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        immediately shouted to her to pull her hand out. Appellant
        then instantaneously fled, but when [Officer Kolb] ordered
        her to the ground, she fell. When the officer approached
        Appellant, she pulled her hand out of her waistband, she
        had a clear plastic bag filled with three blue vials
        containing a white substance, alleged crack cocaine.

        [Officer Kolb] testified that [he] had arrived in a marked
        vehicle, within a minute of receiving the radio call. The
        area was known for drug sales and shootings. When
        [Officer Kolb] initially arrived at the location, the person he
        saw appeared to be a Hispanic male, [wearing a] red-
        hooded sweatshirt and glasses, with short[,] shaved hair.
        Officer Kolb has previously encountered people who carry
        guns without a license, and they typically keep them in
        their waistbands.        [Appellant’s hand was] under her
        sweatshirt jacket at her waist. … [Officer Kolb] asked
        Appellant to show her hands for officer safety because he
        believed she had a firearm in her waistband.

(Trial Court Opinion, filed February 22, 2016, at 1-2) (internal citations

omitted).

     Appellant filed a suppression motion in municipal court. On August 10,

2016, the court held a suppression hearing and denied relief.         Appellant

proceeded to a waiver trial in municipal court that same day.        The court

convicted Appellant of possession of a controlled substance and sentenced

her to nine months’ probation. On August 25, 2016, Appellant timely filed a

petition for writ of certiorari under Pa.R.Crim.P. 1006.    After a hearing on

October 26, 2016, the Philadelphia Court of Common Pleas denied

Appellant’s petition. Appellant timely filed a notice of appeal on November

3, 2016.    On December 21, 2016, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.


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1925(b); Appellant timely complied on January 11, 2017.

        Appellant raises the following issue for our review:

           WHERE POLICE STOPPED APPELLANT BECAUSE SHE MET
           THE DESCRIPTION AND LOCATION OF A PERSON ALLEGED
           IN AN ANONYMOUS TIP TO HAVE A GUN, AND SHE WAS
           STANDING ON A WINTER’S DAY WITH HER HANDS UNDER
           HER SWEATSHIRT IN HER WAISTBAND, WAS NOT
           REASONABLE SUSPICION LACKING AND SUPPRESSION OF
           PHYSICAL EVIDENCE REQUIRED UNDER THE FOURTH
           AMENDMENT OF THE UNITED STATES CONSTITUTION AND
           ARTICLE I, SECTION 8 OF THE PENNSYLVANIA
           CONSTITUTION?

(Appellant’s Brief at 3).

        Appellant argues the physical evidence the police found in her

possession should have been suppressed because the police subjected her to

an illegal detention. Appellant claims when the police asked her to put her

hand in the air, she became the subject of an investigative detention.

Appellant avers she only matched the description of an anonymous tip,

which does not give police reasonable suspicion to conduct a Terry2 stop

absent independently corroborated criminal activity.           Appellant maintains

that she merely stood on the sidewalk with her hand in her waistband, which

is not an indication that criminal activity is afoot.     Appellant submits the

police needed more than a hunch or suspicion to conduct the investigative

detention. Appellant concludes this Court should vacate her conviction or,

alternatively, reverse the trial court’s denial of her suppression motion and
____________________________________________


2   Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).



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remand for a new trial with instructions to suppress the evidence.        We

disagree.

      Our standard of review of the denial of a motion to suppress evidence

is as follows:

         [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 [the] 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 [trial court
         are] subject to plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),

appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).

      The focus of search and seizure law “remains on the delicate balance

of protecting the right of citizens to be free from unreasonable searches and

seizures and protecting the safety of our citizens and police officers by

allowing police to make limited intrusions on citizens while investigating

crime.” Commonwealth v. Moultrie, 870 A.2d 352, 356 (Pa.Super. 2005)

(quoting Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.Super. 2004))



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(internal quotation marks omitted).        “[I]n assessing the lawfulness of

citizen/police encounters, a central, threshold issue is whether…the citizen-

subject has been seized.”    Commonwealth v. Strickler, 563 Pa. 47, 57,

757 A.2d 884, 889 (2000).

      Contacts between the police and citizenry fall within three general

classifications:

         The first [level of interaction] 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. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth

v. Bryant, 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied, 583 Pa.

668, 876 A.2d 392 (2005)).

         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.

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                                 *    *    *

         To determine if an interaction rises to the level of an
         investigative detention, i.e., a Terry stop, the court must
         examine all the circumstances and determine whether
         police action would have made a reasonable person believe
         [she] was not free to go and was subject to the officer’s
         orders.

         An investigative detention, unlike a mere encounter,
         constitutes a seizure of a person and thus activates the
         protections of Article 1, Section 8 of the Pennsylvania
         Constitution. To institute an investigative detention, an
         officer must have at least a reasonable suspicion that
         criminal activity is afoot. Reasonable suspicion requires a
         finding that based on the available facts, a person of
         reasonable caution would believe the intrusion was
         appropriate.

                                 *    *    *

         Reasonable suspicion exists only where the officer is able
         to articulate specific observations which, in conjunction
         with    reasonable     inferences  derived    from    those
         observations, led him reasonably to conclude, in light of
         his experience, that criminal activity was afoot and that
         the person he stopped was involved in that activity.
         Therefore, the fundamental inquiry of a reviewing court
         must be an objective one, namely, whether the facts
         available to the officer at the moment of intrusion warrant
         a [person] of reasonable caution in the belief that the
         action taken was appropriate.

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005) (internal

citations omitted).

      “[T]he question of whether reasonable suspicion existed at the time of

an investigatory detention must be answered by examining the totality of

the circumstances to determine whether there was a particularized and


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objective basis for suspecting the individual stopped of criminal activity.”

Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa.Super. 2000)

(quoting Commonwealth v. Beasley, 761 A.2d 621, 625-26 (Pa.Super.

2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001)).

          [T]he 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. Young, 904 A.2d 947, 957 (Pa.Super. 2006), appeal

denied, 591 Pa. 664, 916 A.2d 633 (2006) (quoting Commonwealth v.

Conrad, 892 A.2d 826, 829 (Pa.Super. 2006), appeal denied, 588 Pa. 747,

902 A.2d 1239 (2006)) (internal citations and quotation marks omitted).

      “While a tip can be a factor [in determining whether reasonable

suspicion existed], an anonymous tip alone is insufficient as a basis for

reasonable suspicion.”   Commonwealth v. Leonard, 951 A.2d 393, 397

(Pa.Super. 2008) (quoting In re M.D., 781 A.2d 192, 197 (Pa.Super.

2001)).    “Because an anonymous tip typically carries a low degree of

reliability, more information is usually required before investigating officers

develop the reasonable suspicion needed to support an investigatory stop of

a suspect.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa.Super. 2006).

          Police cannot initiate a detention based solely upon an
          anonymous tip that a person matching the defendant’s
          description in a specified location is carrying a gun.
          However, if the person described by the tipster engages in
          other suspicious behavior, such as flight, reasonable
          suspicion justifying an investigatory detention is present.

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           Evasive behavior also is relevant in the reasonable-
           suspicion mix.    Moreover, whether the defendant was
           located in a high[-]crime area similarly supports the
           existence of reasonable suspicion. Finally, if 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.

Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc),

appeal denied, 605 Pa. 694, 990 A.2d 727 (2010) (internal citations

omitted). Thus, a combination of factors can quickly coalesce to form the

basis    for   reasonable   suspicion,   where   one   factor    alone   might   fail.

Commonwealth v. Gray, 784 A.2d 137 (Pa.Super. 2001).

        Instantly, Officer Kolb responded to a call, based on an anonymous tip,

in a high-crime area, for a person carrying a gun, described as a Hispanic

male with a red hoodie and glasses. Officer Kolb arrived on scene within one

minute in a marked vehicle and observed Appellant, who had short, shaved

hair and was wearing a red sweatshirt and glasses.              Officer Kolb noticed

Appellant’s hand was in her waistband and shouted at her to remove her

hand for officer safety.     Appellant fled and fell to the ground.       Appellant

pulled her hand out of her waistband, which revealed a clear plastic bag

filled with three blue vials containing crack cocaine.            Officer Kolb then

arrested Appellant.     The court denied Appellant’s suppression motion and

convicted her of possession of a controlled substance.

        Here, when Officer Kolb asked Appellant to remove her hand from her


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waistband,   the   interaction   changed   from   a   mere   encounter   to   an

investigative detention.    See Jones, supra.         Appellant’s match of the

description from an anonymous tip was not enough by itself to justify an

investigative detention.   See Foglia, supra; Fell, supra.        Officer Kolb,

however, did have reasonable suspicion based on the totality of the

circumstances: Appellant matched the description from the call; Appellant

was located in a high-crime area; Officer Kolb arrived on scene within one

minute; the anonymous tip was for a person with a gun; Appellant had her

hand in her waistband, which Officer Kolb knew from his experience could

indicate a secreted firearm. See Foglia, supra; Leonard, supra; Young,

supra; Gray, supra; Cottman, supra.          The record supports the court’s

decision to deny Appellant’s suppression motion.        See Hoppert, supra.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/18




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