J-S29016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MISTER MITCHELL

                            Appellant                No. 1209 WDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000017-2014


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JUNE 16, 2015

        Appellant, Mister Mitchell, appeals from the June 26, 2014 judgment of

sentence of three years’ probation imposed after the trial court found him

guilty of carrying a firearm without a license.1     After careful review, we

affirm.

        The trial court summarized the factual background of this case as

follows.

              [A]t approximately 10[:00] p.m. on December 16,
              2013, four (4) Pittsburgh Police [d]etectives were
              patrolling in an unmarked police vehicle.     While
              stopped at a traffic light at the intersection of
              Homewood and Frankstown Avenues, they observed
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6106(a)(1).
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              [Appellant] grabbing and adjusting the front of his
              waistband.     When the officers pulled up to
              [Appellant], shined a flashlight on him and
              announced themselves as police officers, [Appellant]
              turned and ran.      He was pursued on foot by
              Detectives [Mark] Goob and [Edward] Fall[ert] and
              the other two (2) officers followed in their vehicle.
              Throughout the chase, [Appellant] held his
              waistband.    Eventually, Detective Goob observed
              [Appellant] pull a gun out of his pants, drop it and
              continue running.        Appellant was eventually
              apprehended and was arrested.

Trial Court Opinion, 12/4/14, at 1-2.

       On February 4, 2014, the Commonwealth filed an information charging

Appellant with the aforementioned offense. Appellant filed a motion to

suppress evidence on May 8, 2014, and the trial court held a hearing on the

motion on June 26, 2014. At the conclusion of the suppression hearing, the

trial court denied Appellant’s suppression motion, and Appellant proceeded

to a stipulated bench trial.         N.T., 6/26/14, at 27.   The Commonwealth

presented a certificate of non-licensure form and a crime lab report

indicating that the firearm recovered was in good operating condition. Id. at

29.    The trial court found Appellant guilty of the charged offense and

sentenced Appellant to three years’ probation. Id. at 29-30. On July 25,

2014, Appellant filed a timely notice of appeal.2

       On appeal, Appellant raises the following issue for our review.

____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            I.     Did the trial court err in denying [Appellant’s]
                   motion to suppress where police subjected
                   [Appellant] to an investigative detention
                   without the requisite reasonable suspicion to
                   believe criminal activity was afoot?

Appellant’s Brief at 4.

      When reviewing a challenge to a trial court’s denial of a suppression

motion, we adhere to the following well-established standard of review.

            We may consider only the Commonwealth’s evidence
            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.          An
            appellate court, of course, is not bound by the
            suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

      Appellant argues the trial court erred in denying his motion to

suppress because police lacked reasonable suspicion that he was engaged in

criminal activity. Appellant’s Brief at 10. Therefore, “the seizure was illegal

under both the Fourth Amendment to the United States Constitution and

Article I, Section 8, of the Pennsylvania Constitution.”     Id.      Specifically,

Appellant contends that he was seized “at the moment four detectives …

pulled their police vehicle alongside [Appellant], shone a flashlight at him,

and identified themselves as Pittsburgh Police[] ….” Appellant’s Brief at 12.

For the following reasons, we disagree.




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      The Fourth Amendment of the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated….”

U.S. Const. amend IV.        Similarly, the Pennsylvania Constitution assures

citizens of our Commonwealth that “[t]he people shall be secure in their

persons, houses, papers and possessions from unreasonable searches and

seizures….”    Pa. Const. art. I, § 8.    Further, “[t]he reasonableness of a

governmental intrusion varies with the degree of privacy legitimately

expected and the nature of the governmental intrusion.” Commonwealth

v. Fleet, --- A.3d ---, 2015 WL 1845917, at *4 (Pa. Super. 2015) (citation

omitted). Interactions between law enforcement and citizens fall into one of

the following three categories.

              The first of these 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 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.

Id. (citation omitted).    When assessing whether an interaction escalates

from a mere encounter to an investigative detention, we employ the

following standard.

              To guide the crucial inquiry as to whether or not a
              seizure has been effected, the United States

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            Supreme Court has devised an objective test
            entailing a determination of whether, in view of all
            surrounding circumstances, a reasonable person
            would have believed that he was free to leave. In
            evaluating the circumstances, the focus is directed
            toward whether, by means of physical force or show
            of authority, the citizen-subject’s movement has in
            some way been restrained.           In making this
            determination, courts must apply the totality-of-the-
            circumstances approach, with no single factor
            dictating the ultimate conclusion as to whether a
            seizure has occurred.

Commonwealth v. McAdoo, 46, A.3d 781, 784 (Pa. Super. 2012) (citation

omitted), appeal denied, 65 A.3d 413 (Pa. 2013).       Moreover, when this

Court evaluates whether an investigative detention is constitutional, the

following principles guide our decision.

            A police officer may detain an individual in order to
            conduct an investigation if that officer reasonably
            suspects that the individual is engaging in criminal
            conduct. This standard, less stringent than probable
            cause, is commonly known as reasonable suspicion.
            In order to determine whether the police officer had
            reasonable     suspicion,    the     totality of  the
            circumstances must be considered. In making this
            determination, we must give due weight to the
            specific reasonable inferences the police officer is
            entitled to draw from the facts in light of his
            experience. Also, the 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. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014), citing

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc),

appeal denied, 990 A.2d 727 (Pa. 2010).

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     At the suppression hearing, Detective Goob testified as follows

regarding his encounter with Appellant.

           [The Commonwealth]:

                 Q.    Could you      explain   the   nature    [of
           Appellant’s arrest]?

                 A.    Yes. While working in that area -- which
           is a high crime area. It is known for a lot of guns
           and drug arrests in that vicinity -- while we were
           stopped at a traffic light on Homewood and
           Frankstown, I observed [Appellant], who is seated at
           the defense table …. He was standing on the corner.

                  There were other people in the area. It was a
           fairly busy area. However[,] what drew my attention
           to [Appellant] was I noticed him making adjustments
           to the front right side of his waistband. …

                 As the light changed, we crossed over
           Frankstown towards [Appellant]. As soon as we
           started to go through the light, [Appellant] who is
           standing on the corner and looking in our direction,
           he turned and started to walk up Homewood. As he
           started to walk up Homewood, we got through the
           intersection and pulled up beside him.

                  As he was walking, we slowed our vehicle
           down to like the pace that he was walking and as we
           did this, Detective Fallert illuminated [Appellant] with
           his light and identified us as Pittsburgh Police.

                 Immediately upon doing that[,] [Appellant]
           grabbed the front side of his waistband and started
           to run through the vacant lot to our right.

N.T., 6/26/14, at 3-5. Detective Fallert also testified for the Commonwealth

at the suppression hearing and provided the following relevant testimony.

           [The Commonwealth]:


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                 Q.    Could you describe the encounter?

           [Detective Fallert]:

                  A.   Based on our observations, watching
           [Appellant], I believed he had a firearm in his
           waistband.     He was standing outside store at
           Homewood and Frankstown. There were a few other
           individuals. They were around the front at the bus
           stop and there were a couple people directly in the
           store. A male had come out of the store [] at the
           same time [as] [Appellant]. Our light changed. We
           were the second car in line. We waited until the car
           in front of us turned left and we proceeded across
           the intersection and pulled up directly across from
           [Appellant] who seen [sic] us coming.

                 Q.    At that point what did you do?

                 A.   […] We drove across the street. We
           drove up next to [Appellant]. I shined my light on
           him. At that point[,] I said [“]Pittsburgh Police[”] and
           he immediately looked over, I mean real briefly, and
           turned to his right and took off running behind the
           convenience store.

Id. at 16-17.

     The Commonwealth’s evidence establishes that at the moment police

first came into contact with Appellant, they identified themselves as law

enforcement and shined a light on Appellant. Id. at 11, 17. The evidence

also establishes that the police officers did not say anything else to

Appellant, for instance, requesting identification or commanding Appellant to

stop, before Appellant ran away from the police.      See id.   In viewing all

surrounding circumstances, we conclude that when the police officers first

came into contact with Appellant, the interaction was a mere encounter, and


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a seizure of Appellant did not occur.            See McAdoo; supra; see e.g.

Commonwealth v. Au, 42 A.3d 1002, 1007-1009 (Pa. 2012) (holding,

after discussion of federal and Pennsylvania case law, that “under Fourth

Amendment law as reflected in the decisions of the United States Supreme

Court, a request for identification is not to be regarded as escalatory in

terms of the coercive aspects of a police-citizen encounter[]”).

       Following the initial encounter with police, Appellant “took off running,”

at which point he was pursued by the police officers. N.T., 6/26/14, at 17.

Therefore, at this point, a seizure of Appellant occurred.         See Ranson,

supra at 77 (observing “pursuit by police constitutes a seizure under the law

of this Commonwealth”). However, the record is clear that at the time police

began pursuing Appellant, he was present in a high-crime area at

approximately 10:00 p.m., and he was observed adjusting his waistband.

N.T., 6/26/14, at 4-5.       Additionally, when Detective Fallert illuminated his

flashlight on Appellant and identified himself and his fellow officers as police,

Appellant immediately “grabbed the front side of his waistband and started

to run ….” Id. Under the totality of the circumstances, giving due weight to

the reasonable inferences drawn by Detectives Goob and Fallert in light of

their experience,3 we conclude they had reasonable suspicion to believe

____________________________________________


3
  Detective Goob testified he was employed by the Pittsburgh Police
Department for 13 years and the area where he encountered Appellant was
known for “a lot of guns and drug arrests[.]” N.T., 6/26/14, at 3. Detective
(Footnote Continued Next Page)


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Appellant was engaged in criminal conduct. See Ranson, supra; see also

In re D.M., 781 A.2d 1161, 1164 (Pa. 2001) (discussing the relevancy of

flight in determining if reasonable suspicion exists and noting, “it is evident

that unprovoked flight in a high crime area is sufficient to justify a Terry[4]

stop     under   the      Fourth     Amendment[]”);    cf.   Commonwealth      v.

Washington, 51 A.3d 895, 898-899 (Pa. Super. 2012) (reviewing cases

where the defendants “clearly … fled from individuals who were recognized

as police” and concluding the “crucial element” when evaluating flight in a

high crime area creating a nexus between running and criminal activity is

that the defendant was “knowingly running from police[]”).

        Accordingly, we reject Appellant’s argument that “the trial court erred

in failing to suppress the firearm [he] [] discarded during the police chase.”

Appellant’s Brief at 10. The totality of the circumstances demonstrate that

the police officers had reasonable suspicion to believe Appellant was

engaged in criminal activity when they began their pursuit of Appellant, and

we conclude the trial court did not err in denying Appellant’s motion to

suppress.    See Ranson, supra.            Therefore, we affirm the June 26, 2014

judgment of sentence.
                       _______________________
(Footnote Continued)

Fallert testified he was employed with the Pittsburgh Police Department for
21 years, he had attended “an ATF course on characteristics of armed
individuals[,]” and based on his observations of Appellant, he believed
Appellant had a weapon.” Id. at 16-17.
4
    Terry v. Ohio, 392 U.S. 1 (1968).



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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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