J-S57045-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :      IN THE SUPERIOR COURT OF
                                              :            PENNSYLVANIA
              v.                              :
                                              :
CARLTON FITZGERALD JOHNSON,                   :
                                              :
                     Appellant                :           No. 1283 EDA 2016

             Appeal from the Judgment of Sentence March 22, 2016
              in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0014992-2013

BEFORE: PANELLA, SOLANO and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                        FILED NOVEMBER 16, 2017

        Carlton Fitzgerald Johnson (“Johnson”) appeals from the judgment of

sentence imposed following his convictions of persons not to possess

firearms, firearms not to be carried without a license, carrying firearms on

public streets in Philadelphia, and possession of a small amount of

marijuana.1 We affirm.

        The trial court set forth the relevant facts underlying this appeal as

follows:

        On November 15, 2013[,] at approximately 6:30 pm, Officer
        [Jeffrey] O’Palski [(“Officer O’Palski”)] was on patrol with his
        partner, Officer Mundrick,[2] in the area of 1600 North Allison
        Street in Philadelphia, Pennsylvania.         N.T. [(suppression
        hearing),] 4/29/1[4,] at 8. Based on his experience as a Five
        Squad officer in the 19th District, Officer O’Palski testified that
        “1600 North Allison is a crime-ridden area, it’s a big gang area,


1
  See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108; 35 P.S. § 780-
113(a)(31).

2
    Officer Mundrick’s first name is not revealed in the certified record.
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     right off Lansdowne Avenue; high crime, shootings, robberies,
     drugs, drug sales, and drug use.” Id. at 8. While traveling
     eastbound in a marked squad car, the officers observed
     [Johnson] standing on the southwest corner of Allison and
     Lansdowne Streets. Id. at 9.

            After looking in the direction of the officers, [Johnson]
     immediately began running southbound on the 1500 block of
     Allison Street. Id. at 9. In response to [Johnson’s] abrupt
     departure, Officer O’Palski turned his vehicle around the corner,
     then pulled up alongside [Johnson], who stopped and placed his
     hands above his head. Id. at 1[0]. Officer O’Palski observed
     that [Johnson] was wearing an orange and white glove on his
     right hand, but did not have one on his left. Id. [] Officer
     O’Palski asked [Johnson] if everything was okay; [Johnson]
     responded that his baby was having a medical emergency. Id.
     [] The officers exited their vehicle and approached [Johnson] to
     see if he needed rescue or medical attention. Id.

            At that time, Officer O’Palski detected a strong odor of
     alcohol coming from [Johnson’s] breath. Id. [Johnson] told the
     officers that his baby was inside a house on the block of 1500
     Allison Street. Id. The officers stayed at the location while
     [Johnson] went inside the house[,] in case he was in need of
     assistance. Id. After opening the front door of the house and
     peeking his head in for two or three seconds, [Johnson] looked
     at the officers and told them that he was “good.” Id. At that
     time, the officers returned to their patrol car and continued
     southbound on Allison Street, rounding the block to continue
     eastbound on Lansdowne Avenue to their original route. Id. at
     11. As they reached the intersection of Allison and Lansdowne[,]
     roughly one minute later, the officers once again observed
     [Johnson]. Id. This time, [Johnson] was on the east side of the
     1600 block of Allison Street, quickly walking northbound. Id.
     Officer O’Palski pulled the patrol vehicle alongside [Johnson] for
     the second time, then asked him how his baby was doing. Id.
     [Johnson] stated that the baby had stopped breathing, but that
     they gave the baby something and he was okay. Id.

            From his vantage point inside the vehicle (roughly 10-15
     feet from [Johnson]), Officer O’Palski noticed that [Johnson] had
     a very large object in his right [front] pants pocket. Id. He
     testified that the object was long in size and seemed to be
     heavy, as [Johnson’s] right side pocket was sagging down longer

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     on the right side than it was on the left. Id. at 12. Officer
     O’Palski also observed that [Johnson] had his right hand partially
     inside of his pocket, but not all the way in, as it seemed as
     though he was unable to fully fit his hand inside of his pocket.
     Id. Officer Mundrick asked [Johnson] to remove his hand from
     his pocket. Id. [] In response, [according to Officer O’Palski,
     Johnson] “bent down slightly, crouched forward, bent the waist
     down towards the right side and he side-stepped away and said,
     ‘we’re cool, we’re cool.’” Id. Officer O’Palski testified that based
     on his experience with firearms and people who illegally carry
     them on the street, [Johnson’s] behavior was indicative of the
     fact that he had a firearm. Id.

           After making these observations, Officer O’Palski and
     [Officer Mundrick] exited the vehicle.      Id. at 13.    Officer
     Mundrick approached [Johnson] from behind to perform a frisk[,]
     while Officer O’Palski approached him from the front. Id. While
     performing the frisk, Officer Mundrick touched [Johnson’s] right
     pocket, then immediately yelled “gun.” Id. at 14. The officers
     then removed [Johnson’s] hands from the area, at which point
     they recovered a 9[-]millimeter semiautomatic handgun. Id.
     After determining that [Johnson] did not have a license to carry
     a firearm, the officers placed him under arrest. Id. at 15. In
     addition to the weapon, the officers also recovered two yellow-
     tinted bags containing a green, “weedy, seedy” substance that
     tested positive for marijuana[,] along with the orange and white
     glove that was worn by [Johnson]. Id. at 13.

Trial Court Opinion, 2/17/17, at 1-3 (footnote added).

     Following his arrest, the Commonwealth charged Johnson with the

above-mentioned offenses.    Johnson thereafter filed a Motion to suppress

the contraband seized from his person, asserting that the police lacked

reasonable suspicion to stop and frisk him. The Commonwealth responded

that the officers possessed reasonable suspicion, and the search was a

lawful protective frisk for weapons, pursuant to Terry v. Ohio, 392 U.S. 1

(1968).   After a suppression hearing, the trial court denied the Motion to


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suppress. Johnson subsequently filed a Motion to reconsider the suppression

ruling, which the trial court denied, by operation of law.

      The matter proceeded to a non-jury trial, at the close of which the trial

court convicted Johnson on all counts. On March 22, 2016, the trial court

sentenced Johnson to an aggregate term of five to ten years in prison,

followed by five years of probation. Johnson timely filed a Notice of Appeal.

In response, the trial court ordered him to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Johnson timely filed a Concise

Statement.

      Johnson now presents the following question for our review:

      Did not the [trial] court err by denying [Johnson’s M]otion to
      suppress physical evidence, where [Johnson] was subjected to
      an investigatory detention and frisk without reasonable suspicion
      that he was engaged in criminal activity, in violation of both the
      federal and state constitutions, inasmuch as he was stopped and
      frisked solely on the basis of a bulge in his pants[] pocket[,]
      while in a high crime area[,] after police officers had already
      engaged in conversation with him one minute earlier and left the
      area, and no behavior on the part of [Johnson] could have led
      them to reasonably conclude that he was, or had been, engaged
      in any criminal activity?

Brief for Appellant at 3.

      In reviewing a challenge to a trial court’s denial of a motion to

suppress, “[o]ur standard of review … is limited to determining whether the

factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct.”             Commonwealth v.

Kearney, 92 A.3d 51, 65 (Pa. Super. 2014). “In making this determination,


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we may consider only the evidence of the prosecution’s witnesses and so

much of the defense as, fairly read in the context of the record as a whole,

remains uncontradicted.”    Commonwealth v. Page, 59 A.3d 1118, 1131

(Pa. Super. 2013) (citation omitted). “Where the record supports the factual

findings of the trial court, the appellate court is bound by those facts and

may reverse only if the legal conclusions drawn therefrom are in error.”

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015). “With

respect to factual findings, … is the sole province of the suppression court to

weigh the credibility of the witnesses. Further, the suppression court judge

is entitled to believe all, part or none of the evidence presented.”         Id.

(citation omitted); see also Commonwealth v. Camacho, 625 A.2d 1242,

1245 (Pa. Super. 1993) (stating that an appellate court will not reverse a

suppression court’s assessment of credibility absent a manifest abuse of

discretion).

      Regarding frisks under Terry, supra, this Court has observed as

follows:

      [I]t is hornbook law that the Fourth Amendment to the United
      States Constitution[,] as well as Article I, § 8 of the Pennsylvania
      Constitution[,] protect citizens from unreasonable searches and
      seizures. Warrantless searches and seizures (such as occurred
      in this case) are unreasonable per se, unless conducted pursuant
      to specifically established and well-delineated exceptions to the
      warrant requirement. One such exception, the Terry “stop and
      frisk,” permits a police officer to briefly detain a citizen for
      investigatory purposes if the officer observes unusual conduct
      which leads him to reasonably conclude, in light of his
      experience, that criminal activity may be afoot. Terry further
      held that when an officer is justified in believing that the

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     individual[,] whose suspicious behavior he is investigating at
     close range[,] is armed and presently dangerous to the officer or
     to others[,] the officer may conduct a pat[-]down search to
     determine whether the person is in fact carrying a weapon. The
     purpose of this limited search is not to discover evidence of
     crime, but to allow the officer to pursue his investigation without
     fear of violence.

            In order to conduct an investigatory stop, the police must
     have reasonable suspicion that criminal activity is afoot. In
     order to determine whether the police had reasonable suspicion,
     the totality of the circumstances — the whole picture — must be
     considered. Based upon that whole picture[,] the detaining
     officers must have a particularized and objective basis for
     suspecting the particular person stopped of criminal activity. To
     conduct a pat down for weapons, a limited search or “frisk” of
     the suspect, the officer must reasonably believe that his safety
     or the safety of others is threatened.

Commonwealth       v.   Simmons,    17    A.3d   399,   402-03   (Pa.   Super.

2011) (internal citations, quotation marks, and some paragraph breaks

omitted).   However, “[t]he 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 the safety

of others was in danger.”    Commonwealth v. Taylor, 771 A.2d 1261,

1268-69 (Pa. 2001); see also Commonwealth v. Caban, 60 A.3d 120,

129 (Pa. Super. 2012) (stating that “[w]hen considering the totality of the

circumstances, we need not limit our inquiry to only those facts that clearly

and unmistakably indicate criminal conduct. Instead, even a combination of

innocent facts, when taken together, may warrant further investigation by

the police officer.” (citations and quotation marks omitted)).   Moreover, in

conducting a reasonable suspicion inquiry, a suppression court is required to

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“afford due weight to the specific, reasonable inferences drawn from the

facts in light of the officer’s experience[.]” Commonwealth v. Brown, 996

A.2d 473, 477 (Pa. 2010).

      Johnson argues that the Terry frisk3 of his person was unlawful, and

the contraband seized from that frisk should have thus been suppressed,

because the police lacked reasonable suspicion that he was engaged in

criminal activity.   See Brief for Appellant at 17-24.   Johnson asserts that

“[t]he fact that [he] was merely present in a ‘high crime area’ … in no way

establishes his involvement in criminal activity.”        Id. at 18 (citing

Commonwealth v. Kearney, 601 A.2d 346, 348 (Pa. Super. 1992) (stating

that “[m]ere presence near a high crime area or in the vicinity of a recently

reported crime, is not enough to warrant a Terry stop.”)).         Moreover,

according to Johnson, his

      actions of side-stepping away from the officers and saying ‘we
      cool, we cool,’ similarly does not constitute reasonable suspicion
      of his involvement in criminal activity. See [Commonwealth v.
      Key], 789 A.2d [282,] 289-[]90 [(Pa. Super. 2001)] (appellant’s
      act of ceasing to talk to his companion and turning and walking
      away upon observing the officers watching him, does not
      constitute reasonable suspicion of appellant’s involvement in
      criminal activity).

Brief for Appellant at 18-19. Johnson additionally emphasizes that “Officer

O’Palski testified that he did not suspect [] Johnson of any crime during his




3
  It is undisputed that the stop and frisk of Johnson was an investigative
detention by the police.
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first interaction with [Johnson].”   Id. at 19 (citing N.T., 4/29/14, at 23).

Finally, Johnson argues that

      Officer O’Palski’s observation of a large object in [] Johnson’s
      pants does not create a basis for finding reasonable suspicion of
      criminal activity. The only reason that Officer O’Palski provided
      for thinking that [] Johnson possessed a gun was that [] Johnson
      bent slightly to the right. It is, thus, clear that Officer O’Palski’s
      belief was based on a hunch and nothing more.

Brief for Appellant at 21 (citation to record omitted).

      The record reveals that at the time of the incident, Officer O’Palski had

nearly four years of experience as a police officer. N.T., 4/29/14, at 7. He

is a member of the “Five Squad,” which is a “proactive” squad that focuses

on known high-crime areas. Id. Officer O’Palski previously had completed

specific   concealed   weapons    training   through      the    Institute     of   Law

Enforcement Education. Id. at 17. Additionally, he had made between 40-

50 prior firearms arrests at the time of the suppression hearing. Id. at 18.

      Officer O’Palski testified that, on the date in question, he and Officer

Mundrick were on patrol, in a marked police cruiser, in an area known for

narcotics trafficking and gun violence, at 6:30 p.m.            Id. at 7, 8.    Officer

O’Palski observed Johnson standing on a street corner.            Id. at 9.     At that

time, Johnson looked in the direction of the police car and immediately

started running in the opposite direction.      Id.    In response to Johnson’s

flight, Officer O’Palski pulled the police cruiser up alongside Johnson, who

stopped and placed his hands above his head. Id. at 10. Officer O’Palski

asked Johnson if everything was okay, in response to which Johnson stated

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that his baby was sick, and that the baby was currently inside of a nearby

residence.    Id.   While Johnson went into the residence in question to

purportedly check on the baby, the officers stayed on the scene in case

Johnson or his child required any additional assistance. Id. However, after

sticking his head inside the house for a few seconds, Johnson told the

officers that all was well. Id. The officers then left and continued on their

patrol route. Id. at 11.

      Approximately one minute later, however, the officers again saw

Johnson on the street, and pulled up alongside him to inquire how his baby

was doing. Id. At that time, from his vantage point of approximately 10-15

feet away from Johnson, Officer O’Palski noticed a “very large” bulge in

Johnson’s right front pants pocket. Id. Officer O’Palski could tell that the

object was long, approximately six inches in length, and appeared to be

heavy, as Johnson’s pants pocket was sagging down longer on the right side

than it was on the left side. Id. at 11-12, 36. Officer O’Palski also observed

that Johnson’s right hand was only partially inside of his right front pocket,

as, it appeared to Officer O’Palski, Johnson was unable to fully fit his hand

inside of his pocket due to the large object contained therein.    Id. at 12.

Officer Mundrick then asked Johnson to remove his hand from his pocket.

Id. In response, Johnson “bent down slightly, crouched forward, ben[t] the

waist down towards the right side and he side-stepped away and said, ‘we’re

cool, we’re cool.’” Id. Officer O’Palski testified that based on his training


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and prior experience with concealed firearms arrests, Johnson’s behavior in

this regard tended to suggest that he was carrying a firearm.           Id.   The

officers then stopped Johnson, performed a protective Terry frisk, and

discovered an unlicensed handgun in Johnson’s right front pants pocket, as

well as marijuana. Id. at 13-15.

     Based upon the totality of the above circumstances, we conclude that

Officer O’Palski had a particularized and objective basis for reasonably

suspecting that Johnson was engaged in criminal activity.         The following

facts are particularly relevant: the location of the incident in a known high-

crime area, Johnson’s unprovoked flight immediately upon noticing the

police, Officer O’Palski’s training and experience concerning concealed

firearms, the identification of a large bulge in Johnson’s pants pocket, and

Johnson’s suspicious behavior. See Commonwealth v. Carter, 105 A.3d

765, 766, 774-75 (Pa. Super. 2014) (en banc) (holding that police officer

had reasonable suspicion to conduct a Terry frisk, where the defendant was

standing on street corner in a high-crime area at night, had a weighted and

angled bulge in his coat pocket, was alerted to the officer’s presence and

intentionally turned his body away several times to conceal the bulge in his

coat pocket, and the officer observed the defendant walking away from

known   drug   corner   when   the   officer   repeatedly   circled   the   area);

Commonwealth v. Brown, 904 A.2d 925, 928 (Pa. Super. 2006) (stating

that unprovoked flight in a high-crime area from persons identifiable as


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police officers is sufficient to establish reasonable suspicion to support an

investigative detention); see also Commonwealth v. Foglia, 979 A.2d

357, 361 (Pa. Super. 2009) (en banc) (concluding that reasonable suspicion

for a Terry frisk existed where the defendant, while located in a high-crime

area, repeatedly looked back at the police and walked away from them, and

“touched his waist area and sat down on a stoop behind some females …

[and t]he police officer was aware, based upon his experience with armed

suspects, that weapons are often concealed in a person’s waistband”).

Accordingly, the police possessed reasonable suspicion that Johnson was

armed and dangerous, were thus authorized to conduct a limited Terry frisk

of his person, and lawfully seized the handgun and marijuana.

     Finally, the case law upon which Johnson relies is unavailing. Johnson

principally relies on this Court’s decision in Commonwealth v. Martinez,

588 A.2d 513 (Pa. Super. 1991).      See Brief for Appellant at 23-25.     In

Martinez, police officers, in plain clothes and in an unmarked car,

approached an intersection where four or five individuals were standing on a

corner.   Martinez, 588 A.2d at 515.    After looking in the direction of the

unmarked vehicle, Martinez began quickly walking in one direction, and the

other individuals scattered in different directions.   Id.   The police drove

alongside Martinez and observed her “holding her hands in the front of her

coat, leaning forward, as if to be holding something, leaning forward,

walking quickly up the street.” Id. (citation to record omitted). One of the


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officers then asked Martinez to walk over to the police car, take her hands

out of her jacket, and put her hands on the car. Id. Martinez complied, and

when she put her hands on the car, a plastic bag containing drugs fell from

her coat onto the ground. Id.

      On appeal, this Court in Martinez held that the suppression court had

erred in determining that the above facts established reasonable suspicion to

conduct a lawful investigative detention. Id. at 516-17. The panel stated

that the suppression court improperly “mixed together facts of events

occurring both before and as a result of the stop” and “seemingly believed

that Martinez brought the search and seizure upon herself by ‘drawing

attention to herself.’”   Id. at 516 (emphasis in original).    The Martinez

Court concluded that the only “articulable facts attributable to Martinez,”

which validly could support a conclusion of criminal activity being afoot, were

that she “walked quickly away from a street corner, at 12:20 A.M.[,]” and

“[s]he was holding her hands in the front of her coat and walking quickly up

the street.” Id.; see also id. at 517 (stating that “[t]hese facts are not

enough.”).

      In contrast to Martinez, here, Officer O’Palski articulated his specific

observation that, prior to stopping and frisking Johnson, (1) he saw a very

large bulge in Johnson’s pants pocket, and the object in the pocket was

longer than a cell phone and appeared to be heavy; and (2) Johnson’s

behavior, when he was asked to remove his hand from his pocket, of


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crouching forward, “blading” his body sideways, and side-stepping away,

was indicative, based upon Officer O’Palski’s training and experience, of a

person carrying an illegal firearm. See N.T., 4/29/14, at 11-12, 36. To the

contrary, in Martinez, prior to the police stopping and detaining the

defendant, they had little more than an unparticularized suspicion or hunch

that she was engaged in criminal activity when they observed her holding

her coat out in front of her and leaning forward. See Martinez, 588 A.2d at

517. Moreover, unlike the defendant in Martinez, Officer O’Palski testified

that when Johnson first looked in the direction of the marked police car,

Johnson “immediately started running” in the opposite direction.         N.T.,

4/29/14, at 9 (emphasis added); see also Brown, supra.

     Accordingly, the suppression court did not err or abuse its discretion in

denying Johnson’s Motion to suppress, and Johnson’s issue on appeal fails.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2017




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