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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :        IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                   v.

TAUHEED A. DYCHES,                                   No. 2256 EDA 2018

                        Appellant


     Appeal from the Judgment of Sentence Entered August 25, 2016,
          in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0011443-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 24, 2019

     Tauheed A. Dyches appeals from the August 25, 2016 judgment of
sentence entered by the Court of Common Pleas of Philadelphia County
following his conviction of possession of a firearm by a prohibited person,

carrying a firearm without a license, and carrying a firearm in public in
Philadelphia.' After careful review, we affirm.

     The trial court provided the following factual history:

            [Appellant] filed a motion to suppress all physical
            evidence that he discarded, asserting a violation of his
            constitutional rights and forced abandonment.
            Pursuant to which, the Commonwealth presented the
            testimony of Officer Thomas Belton, who testified that
            he was      a   police office[r] for approximately
            fourteen years and spent his fourteen years serving in
            the 25th District. He testified that he has conducted
            over 100 firearm arrests.

' 18 Pa.C.S.A. §§ 6105(a), 6106(a), and 6108(a), respectively.
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            He indicated that on the evening of October 27, 2015,
            shortly before 11:00 p.m., he was with his partner,
            Officer Huff, in a marked patrol vehicle serving as part
            of a tactical unit. He indicated that he and his partner
            received reports from other officers and other persons
            of gunshots fired in the area of Broad and Clearfield.

            Very shortly thereafter, as they went to that area,
            around 16th and Allegheny, they spotted [appellant]
            approaching Allegheny at a fast pace. The officer
            described this area as a residential area and he is
            familiar with it and it is known to him for firearms and
            drugs [sic] sales.

            As he approached [appellant] to ask him if he knew
            anything about the gunshots, [appellant] took flight.
            The officers followed in the vehicle. Very shortly
            thereafter, [appellant] tossed the firearm, that was
            later recovered, as he ran for about another
            twenty-five feet before he was cut off by the vehicle
            and apprehended.

            The gun that was recovered was still warm to the
            touch and was recovered just seconds after
            [appellant] fled.

Trial court opinion, 12/18/17 at 2-3, quoting notes of testimony, 4/28/16 at

31-33 (extraneous capitalization omitted).

      The trial court denied appellant's motion to suppress on April 28, 2016.

Immediately thereafter, the trial court held a non -jury trial in which it
convicted appellant of possession of a firearm by a prohibited person, carrying

a firearm without a license, and carrying a firearm in public in Philadelphia.

On August 25, 2016, the trial court imposed an aggregate sentence of four to

ten years' imprisonment. Appellant filed a post -sentence motion, which the

trial court denied. Appellant did not file a notice of appeal to this court.


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      On March 1, 2017, appellant filed a timely pro se petition pursuant to

the Post Conviction Relief Act2 seeking reinstatement of his rights to a direct

appeal, nunc pro tunc. The PCRA court granted appellant's petition and
reinstated his direct appeal rights nunc pro tunc on July 17, 2017. Appellant

filed a timely notice of appeal to this court on July 27, 2017.

      The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to         Pa.R.A.P.    1925(b), and appellant
complied.    The trial court subsequently filed         an opinion pursuant to
Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Did the trial court commit an error of law when it failed
            to grant [appellant's] motion to suppress, where the
            officers lacked reasonable suspicion to detain and thus
            the officer's [sic] forced him to abandon the firearm?

Appellant's brief at 4 (extraneous capitalization omitted).

      When reviewing a denial of a motion to suppress evidence, we are

governed by the following standard:

                  [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

2 See 42 Pa.C.S.A. §§ 9541-9546.

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                  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, 526-27
            (Pa.Super. 2015) (citation omitted).

            Additionally, the Pennsylvania Supreme Court has
            ruled that when reviewing a motion to suppress
            evidence, we may not look beyond the suppression
            record. See In re L.J., [] 79 A.3d 1073 ([Pa.] 2013).

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. 2017).

      "The appellate courts have mandated that law enforcement officers,

prior to subjecting a citizen to an investigatory detention, must harbor at least

a reasonable suspicion that the person seized is then engaged in unlawful

activity." Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super. 2005)
(citation omitted). "Reasonable suspicion is a less demanding standard than

probable cause because it can be established by information that is different

in quantity and quality than that required for probable cause; it can arise from

information that is less reliable than that required to show probable cause."



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Commonwealth v. Emeigh, 905 A.2d 995, 998 (Pa.Super. 2006) (citation
omitted).

            To meet the standard of reasonable suspicion, "the
            officer must point to specific and articulable facts
            which, together with the rational inferences
            therefrom, reasonably warrant the intrusion. In
            ascertaining the existence of reasonable suspicion, we
            must look to the totality of the circumstances to
            determine     whether    the    officer   had   reasonable
            suspicion that criminal activity was afoot." Barber,
            supra at 593 (citations and quotations omitted).
            Further, "police officers need not personally observe
            the illegal or suspicious conduct, but may rely upon
            the information of third parties, including 'tips' from
            citizens." Id.
Commonwealth v. Smith, 904 A.2d 30, 35-36 (Pa.Super. 2006).                    Our

supreme court has determined that "unprovoked flight in a high crime area is

sufficient to create a reasonable suspicion" that would justify initiating an
investigative detention." In re D.M., 781 A.2d 1161, 1164 (Pa. 2001), citing

Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
      Here, the trial court concluded that "[t]he police observed conduct
which, based on their training and experience, the time of day, at a location

known for criminal activity, reports of gunshots and [a]ppellant's unprovoked

flight, gave them a reasonable belief that there was criminal activity afoot."

(Trial court opinion, 12/18/17 at 4.) Based on our review of the record, we

find that the record supports the trial court's factual findings and that the trial

court's legal conclusions drawn from those facts are sound. We, therefore,

find that the trial court did not err when it determined that the police


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possessed the requisite reasonable suspicion to initiate an investigative

detention.

     Appellant further argues that the police forced appellant to abandon the

gun at issue. (Appellant's brief at 13.) Specifically, appellant contends that

because appellant discarded the gun while "he was in flight from an illegal

seizure," the evidence should be suppressed. (Id. at 14.) The trial court held

that appellant's "decision to discard the gun was not unlawfully coerced and

[appellant's] motion to suppress was properly denied." (Trial court opinion,

12/18/17 at 5.)

      In order for a defendant to claim forced abandonment of contraband, he

or she must first establish that "the abandonment of contraband or evidence

be precipitated by illegal police conduct." Commonwealth v. Byrd, 987 A.2d

786, 791 n.4 (Pa.Super. 2009), citing Commonwealth v. Jones, 978 A.2d

1000, 1005 n.6 (Pa.Super. 2009); see also Commonwealth v. Ibrahim,
127 A.3d 819, 825 (Pa.Super. 2015), appeal denied, 138 A.3d 3 (Pa. 2016).

      Here, the abandonment of the gun was not precipitated by illegal police

conduct, as the police possessed the requisite reasonable suspicion to initiate

an investigatory detention. Accordingly, appellant's forced abandonment fails.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 7/24/19




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