J-S39017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                              Appellee

                       v.

WYATT ELLIS

                              Appellant                No. 1226 EDA 2014


           Appeal from the Judgment of Sentence December 6, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006999-2012


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED AUGUST 21, 2015

        Wyatt Ellis appeals from the judgment of sentence entered on

December 6, 2013, in the Court of Common Pleas of Philadelphia County

following his conviction by a jury on charges of possession of a prohibited

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

in Philadelphia.1     Ellis received an aggregate sentence of eight to sixteen

years’ incarceration. In this timely appeal, Ellis claims the trial court erred in

denying his motion to suppress. After a thorough review of the submissions

by the parties, relevant law, and the certified record, we affirm.

        Initially, we note,

        [a]n appellate court's standard of review in addressing a
        challenge to a trial court's denial of a suppression motion is
____________________________________________


1
    18 Pa.C.S. §§ 6110.2(a), 6106(a)(1), and 6108 respectively.
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      limited to determining whether the factual findings are supported
      by the record and whether the legal conclusions drawn from
      those facts are correct. [Because] the prosecution prevailed in
      the suppression court, we may consider only the evidence of the
      prosecution 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 record supports the factual findings of the
      trial court, we are bound by those facts and may reverse only if
      the legal conclusions drawn therefrom are in error.

Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa. Super. 2015)

(citation omitted).

      We adopt the trial court’s recitation of the facts as stated on pages 2-4

of the Pa.R.A.P. 1925(a) opinion, dated 12/11/2014, which we summarize

briefly: In the early morning hours of May 25, 2012, Police Officers Wayne

Stinson and Christopher Warrick were on patrol in an unmarked police car in

the 17th police district.   From having spoken to the victim and hearing a

report via police radio, they were on the lookout for a black male, dressed in

all dark clothing who had committed a gunpoint robbery. Approximately one

block away from the robbery site, they saw a black male walking down

Fitzwater Street who was wearing black tactical pants and a black sweater.

The man, later identified as Ellis, noticed the police car and ducked between

two parked cars. The officers stopped their car approximately 20 feet from

where Ellis ducked down and Officer Stinson got out. They did not activate

lights or siren on the car.   Officer Stinson identified himself as police.   At

that time, Ellis started running away from the officer, holding something in

his front waistband as he fled. The police gave chase, eventually catching

Ellis and discovering a .380 Lorcin semi-automatic handgun on his person.


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The gun was loaded with six live rounds of ammunition.           Officer Stinson

testified this took place in a high crime area, noted for gun arrests,

shootings and gun-point robberies.

      Against this factual background, Ellis claims the description of a black

male in dark clothing was too vague to provide the police with either a

reasonable suspicion or probable cause to stop him. He asserts because the

police improperly detained him, any evidence obtained from that stop was

fruit of the poisoned tree and should have been suppressed.

      There are three levels of interaction between citizens and the police.

These are mere encounter, investigative detention, and custodial detention

(arrest):

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

Commonwealth v. Nguyen, ___ A.3d ___, [2015 PA Super 98 at *5] (Pa.

Super. 4/27/2015) (citation omitted).

      Also relevant to our analysis,



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       To determine whether a mere encounter rises to the level of an
       investigatory detention, we must discern whether, as a matter of
       law, the police conducted a seizure of the person involved.

       To decide whether a seizure has occurred, a court must consider
       all the circumstances surrounding the encounter to determine
       whether the demeanor and conduct of the police would have
       communicated to a reasonable person that he or she was not
       free to decline the officer's request or otherwise terminate the
       encounter. Thus, the focal point of our inquiry must be whether,
       considering the circumstances surrounding the incident, a
       reasonable [person] innocent of any crime, would have thought
       he was being restrained had he been in the defendant's shoes.
Id. at 5-6 (citation omitted).

       The gist of Ellis’s argument is that by exiting the police car and

announcing himself as a police officer, Officer Stinson subjected Ellis to an

investigative detention without reasonable suspicion. Accepting for the sake

of argument that the description of a black male dressed in all dark clothing

was too vague to support a reasonable suspicion of any person so described,

we   must     determine     whether     Officer   Stinson’s   action   constituted   an

investigative detention.

       Ellis has provided no case law to support his contention that a police

officer exiting a car and saying the word “Police” equates to the detention of

a citizen.2     Rather, we agree with the able analysis provided by the

Honorable Denis P. Cohen in his Pa.R.A.P. 1925(a) opinion, as follows:
____________________________________________


2
  Ellis appears to have made an unsupported conclusion that because the
police had an inkling that the person they saw, dressed in black and
matching the general description of the suspect, could have been involved in
the gunpoint robbery, any contact between the police and Ellis constituted
an improper investigative detention. This conclusion ignores the fact that
(Footnote Continued Next Page)


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      To determine whether or not a seizure has occurred, the Court
      must consider, based on the totality of the circumstances,
      whether an objectively reasonable person would have believed
      he was free to leave. Commonwealth v. Lyles, 54 A.3d 76, 79
      (Pa. Super. 2012).      Evidence that merely indicates that a
      uniformed officer approached a citizen for questioning is
      insufficient to conclude that a seizure has occurred.
      Commonwealth v. Jones, 378 A.2d 835, 839-40 (Pa. 1977).
      Instead, in situations where a citizen is neither ordered to stop
      nor physically restrained, the Court must consider “all of the
      circumstances which may in any way evidence a show of
      authority or exercise of force.” Id. After considering the totality
      of circumstances evidencing a show of force, the pivotal inquiry
      is whether “a reasonable man, innocent of any crime, would
      have thought (he was being restrained) had he been in the
      defendant’s shoes.” Id.

      In the instant case, at the time Officer Stinson announced his
      presence by saying the word “Police,” Officers Stinson and
      [Warrick] were twenty feet away from [Ellis] and had not
      addressed [him] in any other way. See (N.T. 10/09/2013 at 18,
      20-21). Though the officers were in uniform, neither officer had
      activated their vehicle’s police lights, drawn their weapons,
      asked [Ellis] any questions, or requested [Ellis] to stop. (Id. at
      10-13, 19-21). Additionally, the announcement of “Police”
      occurred after the Officers stepped out of an unmarked police
      vehicle at approximately 1:30 a.m., in an area known for
      violence, and while the Officers were in the middle of a public
      street. (Id. at 13-14, 19-21).       Given the totality of the
      circumstances, no reasonable man, innocent of any crime, would
      have thought that Officers Stinson and [Warrick] were
      restraining him by simply announcing their presence in such an
      area. See Jones, 378 A.2d at 840. Thus, contrary to [Ellis’s]
      contention, Officers Stinson and Warrick had not yet seized
      [Ellis] when Officer Stinson announced “Police,” and needed no
      justification for their “mere encounter” with [Ellis]. See id.;
      Lyles, 54 A.3d at 79 (holding that “mere encounters” need not
      be supported by any level of suspicion).
                       _______________________
(Footnote Continued)

the police may always initiate a mere encounter with a citizen. Accordingly,
an inkling or hunch about a person does not prevent a police officer from
contacting that person, but it will not support the detention of that person.



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      Rather, as the Commonwealth contends, [Ellis] was initially
      seized after he fled and Officers Stinson and [Warrick] started
      chasing him. See Commonwealth v. Matos, 672 A.2d 769,
      771 (Pa. 1996) (stating that the pursuit of a fleeing defendant
      constitutes a seizure). Because [Ellis’s] flight was unprovoked
      and in a high-crime area, the Officers had reasonable suspicion
      to stop [Ellis] and the initial seizure was lawful. In re D.M., 781
      A.2d 1161, 1164 (Pa. 2001), (“[U]nprovoked flight in a high
      crime area is sufficient to create a reasonable suspicion to justify
      a Terry stop under the Fourth Amendment.”).

Pa.R.A.P. 1925(a) Opinion, 12/11/2014, at 4-5.

      Because the police did not improperly detain Ellis, regardless of the

description of the suspected robber, the trial court did not err in denying

Ellis’s motion to suppress. Therefore, there is no basis upon which Ellis is

entitled to relief.

      Judgment of sentence affirmed.

      Musmanno, J., joins in this memorandum.

      Bowes, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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