J-A12013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                          Appellee      :
                                        :
           v.                           :
                                        :
TROY JACKSON,                           :
                                        :
                          Appellant     :      No. 158 EDA 2013


    Appeal from the Judgment of Sentence Entered December 10, 2012,
           In the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No. CP-51-CR-0001601-2012.


BEFORE: SHOGAN, STABILE and PLATT*, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 17, 2014

     Appellant, Troy Jackson, appeals from the December 10, 2012

judgment of sentence following his conviction on weapons charges at a

bench trial. We affirm.

     The trial court summarized the facts of the crime as follows:

     [T]he Commonwealth presented the testimony of the arresting
     officer, Philadelphia Police Officer Darnell Young. Officer Young
     testified that he and his partner were patrolling the 12th District
     of Philadelphia in a marked car on January 20th 2012, when at
     approximately 7:00 p.m. they received information via radio call
     about a robbery in progress at point of gun at 52nd Street and
     Baltimore Street. The radio call contained flash information,
     provided by an identified complainant, of a black male wearing a
     black hat with blue jeans. Less than one minute after receiving
     the call, the officers observed defendant at the 5200 block of
     Broomall Street, which is a street that branches off from where
     Baltimore Street and Broomall Street intersect on 52nd Street.
     Defendant was wearing a black hooded sweatshirt, black puffy
     jacket, blue jeans, and gray sneakers. Officer Young testified

__________________
*Retired Senior Judge assigned to the Superior Court.
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      that this particular area is one in which there are both robberies
      as well as gun violence.

            Based on his experience and the flash report, Officer
      Young approached and stopped the defendant. Once stopped,
      Officer Young conducted a pat down of defendant and felt the
      butt of a gun on the right side of his waistband. A firearm was
      then recovered and placed on Property Receipt 3021384.

Trial Court Opinion, 7/12/13, at 2.

      Appellant was arrested on January 20, 2012, and charged with various

weapons violations. On April 2, 2012, he filed a motion to suppress, which

was denied following a hearing on the day of trial.      Appellant was found

guilty at a bench trial on August 1, 2012, of all three charges: persons not

to possess firearms, firearms not to be carried without a license, and

carrying firearms on public streets or public property in Philadelphia.    On

December 10, 2012, the trial court sentenced Appellant to an aggregate

term of three to six years of imprisonment followed by three years of

reporting probation. Appellant filed a timely notice of appeal on January 8,

2013. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

      Appellant raises the following single suppression issue for our review:

            Did not the trial court err as a matter of law in denying
                        on to suppress the firearm in violation of his
      state and federal rights to be free from unreasonable searches
      and seizures where [A]ppellant was stopped and searched
      without reasonable suspicion based on uncorroborated flash
      information, was not seen engaging in suspicious or criminal
      behavior, and did not match the description provided of the
      suspect?




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      In reviewing the denial of a motion to suppress,1 we must determine

                                                                dings and the

legitimacy of the inferences and legal conclusions drawn from those findings.

Commonwealth v. Harrell, 65 A.3d 420, 433 (Pa. Super. 2013) (citation

omitted). Where the suppression court finds in favor of the prosecution:

      [o]ur scope of review is limited; 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 findings of
      the suppression court, we are bound by those facts and may
      reverse only if the court erred in reaching its legal conclusions
      based upon the facts.

Commonwealth v. Wormley, 949 A.2d 946, 948 (Pa. Super. 2008)

(quoting Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super.

2002) (en banc)).   It is a well-settled principle that appellate courts must

defer to the credibility determinations of the trial court, which observed the

demeanor of the witnesses and heard them testify.        Commonwealth v.

Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004).




1
   Recently, in In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court
prospectively applied a new rule regarding the scope of review in
                                                                   review in
suppression matters includes the suppression hearing record and not
evidence elicited at trial. As the litigation in this case commenced prior to
L.J., it has no bearing on the instant case. Commonwealth v. Hale, 85
A.3d 570, 574 (Pa. Super. 2014).


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      Appellant contends that the trial court erred in concluding that Officer

Young had reasonable suspicion to stop and frisk Appellant, maintaining that

the Commonwealth failed to offer articulable facts to support the reasonable

suspicion. Appel

      There are three distinct levels of interaction between law enforcement

and the general public: a mere encounter, which need not be supported by

any level of suspicion; an investigative detention, which must be supported

by reasonable suspicion; and an arrest or custodial detention, which must be

supported by probable cause.      Commonwealth v. Walls, 53 A.3d 889,

892 893 (Pa. Super. 2012).      In the instant case, we agree with the trial

                                            h Appellant rose to the level of an

investigative detention.   Accordingly, we must evaluate whether Officer

Young had the required reasonable suspicion to detain Appellant.

      The determination of whether an officer had reasonable suspicion that

criminality was afoot so as to justify an investigatory detention is an

objective one, which must be considered in light of the totality of the

circumstances.     Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011)

(citing Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999)

duty of the suppression court to independently evaluate whether, under the

particular facts of a case, an objectively reasonable police officer would have

                                                       Walls, 53 A.3d at 893




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(citing Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 1108 (Pa.



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

                                                owledge that innocent facts,



Commonwealth v. Downey, 39 A.3d 401, 406 (Pa. Super. 2012) (citing

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010)).

     The trial court stated the following in support of its conclusion that

suppression of the firearm should be denied:

            When looking at the totality of the circumstances, close
     spatial and temporal proximity of a suspect to the crime scene
     as well as areas of expected criminal activity are relevant
     considerations     in    determining     reasonable      suspicion.
     Com[monwealth] v. Jackson, 519 A.2d 427, 438 (Pa. Super.
     1986); Com[monwealth] v. Zhahir, 751 A.2d 1153, 1157 (Pa.
     2000). Officer Young testified that the radio call was for 52nd
     Street and Baltimore Street and that defendant was first
     observed at the 5200 block of Broomall Street.               When
     questioned regarding the proximity of the two streets to one
     another, the officer explained that Broomall Street merely
     branches off from where Baltimore Street and Broomall Street
     intersect at 52nd Street. From the description provided by
     Officer Young it is clear that [Appellant] was stopped at a
     location that was close in proximity to the scene of the crime.
                                                          e stated that
     he first observed [Appellant] approximately less than one minute
     after the radio call. Finally, during an inquiry by the District
     Attorney about the character of the area where [Appellant] was
     stopped, Officer Young testified that based on his fifteen years of
     experience in the 12th District of Philadelphia, it is an area in
     which both robberies as well as gun violence take place. Based
     on this information, the spatial and temporal proximity of
     defendant to the scene of the robbery as well as the character of



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      the area where he was stopped established grounds for
      reasonable suspicion to make a lawful Terry stop.

Trial Court Opinion, 7/12/13, at 6.



reflects that the police possessed the requisite reasonable suspicion when

Appellant was stopped. While patrolling in a high-crime area, Officer Young,

who had fifteen years of experience as an officer in the 12th District, received

a flash report of a gunpoint robbery in progress less than one block away

from him.    N.T., 8/1/12, 8 11, 14 15.      The flash report noted that the

victim had been identified by other officers and had provided a physical

description of the assailant. Id. at 8. Less than one minute after receiving

this report, Officer Young observed Appellant, who matched the physical

description of the assailant. Id. at 11 12. The officer asked Appellant to

stop and, in light of the nature of the reported crime, frisked him for

weapons. Id. at 12. Shortly thereafter, the victim, in the company of police

officers, arrived on the scene. Id. at 17. As we stated in Commonwealth

v. Cruz, 21 A.3d 1247, 1251 (Pa. Super. 2011):

      First, not only was the complainant known to the police, the
      complainant was actually in the company of police and surely
      risked prosecution for false information. [Commonwealth v.]
      Altadonna, [817 A.2d 1145, 1152 (Pa. Super. 2003)]. Second,
      our cases have also regarded information coming from the actual
      crime victim as meriting a high degree of reliability. In re D.M.,
      556 Pa. at 165, 727 A.2d at 558. Therefore, we find that [the]
      Officer . . . possessed the requisite reasonable suspicion to
      justify the stop of [the] appellant.



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treat



12 14.       The potential significance of this fact is that our case law

distinguishes between anonymous tips, which are inherently less reliable,

and information provided by people known to police, regardless of whether

the arresting officer was personally familiar with the tipster.    See, e.g.,

Cruz; Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 965 (Pa.

Super. 1999) (en banc) (explaining 911 report from identified witness gave

officer on the scene reasonable suspicion to stop, even though the officer

never spoke directly to the witness).   Persons who identify themselves to

                                            formant, unlike the anonymous

one, faces risk of prosecution for filing a false claim should the information

               Commonwealth v. Kondash, 808 A.2d 943, 947 (Pa. Super.

2002).

        Here, the victim complainant was identified by police, remained in

thei

detention.    Moreover, Officer Young testified that he knew the victim had



description less than one block away and less than one minute earlier.




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Officer Young also knew that the victim had been identified by fellow officers

and was accompanied by them when he was brought to the scene.

      Moreover, to the extent Appellant suggests he did not match the

description of the robber in the flash report because he did not wear a hat,



flash report, they observed Appellant within one minute of the robbery,

within one-half block of the robbery. He was the same race as the assailant

and wore the same color and type of pants. The only discrepancy was that

the robber was described as wearing a black hat, and Appellant had a black

hoodie.   As the Commonwealth points out, the hat was a small article of

clothing that Appellant could have removed and hidden in a coat or pocket.



      Further, the case law that Appellant cites in support of his claim

regarding this minute discrepancy between the flash report and Appellant,

involved more permanent variations that could not be altered quickly. See,

e.g., Commonwealth v. Hicks, 253 A.2d 276 (Pa. 1969) (assailant

described   as   having   a   mustache;   the   appellant   was   clean-shaven);

Commonwealth v. Pinney, 378 A.2d 293, 295 (Pa. 1977) (description

included prominent facial mark; the appellant was four inches shorter, thirty

pounds lighter, and had no facial marks); Commonwealth v. Youngblood,

359 A.2d 456 (Pa. Super. 1976) (description was of fourteen-year-old




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suspect; the appellant was twenty-five years old with a full beard).       The

mere fact that Appellant did not have one article of clothing described in the

flash report that was small, portable, and easily discarded or concealed, did

not deprive police of reasonable suspicion to stop and frisk him. See, e.g.,

Commonwealth v. Vinson, 522 A.2d 1155, 1157 (Pa. Super. 1987) (stop

proper although the appellant and his companion were shorter than the

                                                         Commonwealth v.

Sheridan, 437 A.2d 44 (Pa. Super. 1981) (stop was proper even though the

defendant wore a different color and type of coat from the description, and

he lacked the described hat).



circumstances through the grudging eyes of hindsight nor in terms of library



Commonwealth v. Jackson, 907 A.2d 540, 543 (Pa. Super. 2006)

(quoting Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa. Super. 1997)).

The totality of these facts, in the knowledge of Officer Young at the time,

was sufficient to establish reasonable suspicion of criminal activity.   Thus,

we conclude that the detention was lawful, and that the trial court properly

held the evidence garnered as a result thereof should not be suppressed.

      Judgment of sentence affirmed.




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J-A12013-14



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2014




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