J-S46038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellant               :
                                         :
           v.                            :
                                         :
LIONEL ROBINSON,                         :
                                         :
                 Appellee                :           No. 2618 EDA 2014

             Appeal from the Order entered on August 7, 2014
           in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No. CP-51-CR-0003789-2013

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 31, 2015

      The Commonwealth of Pennsylvania appeals from the Order granting

the Motion to suppress evidence filed by Lionel Robinson (“Robinson”). We

reverse and remand for further proceedings.

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

follows:

            On the afternoon of September 25, 2012[,] police officer
      Mike Walsh [“Officer Walsh”] and two partners were working [on
      routine patrol], [in] plainclothes, in an unmarked vehicle at or
      near the rear alleyway on 3000 B Street in the City of
      Philadelphia.[1] [While seated in the front passenger seat of the
      parked vehicle,] Officer [Walsh] observed [Robinson] accept
      United States currency in exchange for small objects [] from
      [three] individuals at that location. At th[e] same time as the
      observation, another male[,] co-defendant [Kalief] Johnson[
      (“Johnson”),] who [was] with [] Robinson [in the alleyway,]

1
 We will hereinafter refer to the area surrounding the alleyway and B Street
as “the arrest area.” As we discuss below, Officer Walsh testified that the
arrest area is a known high drug crime area.
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     yell[ed] “cops.” [Robinson] and [Johnson] then r[a]n to the rear
     of [an abandoned building located at] 3016 B Street, at which
     time the partners of Officer Walsh, []Officers [Steven] Hunter
     [“Officer Hunter”] and [Donald] Vandermay[,] pursue[d]
     [Robinson and Johnson] to the front of the [abandoned] building
     [and entered it after Robinson and Johnson]. Officer Walsh
     secure[d] the back of the building. Johnson [was] apprehended
     and arrested ….[2]

            On cross[-]examination, [O]fficer Walsh state[d] that
     [t]here were six people in the alleyway when he was making his
     observations[,] and that [] Robinson took money from three []
     individuals[,] but none of the people were identified or arrested.
     [Officer Walsh] could not say what the objects were that he was
     referring to as being exchanged[.]

            [O]fficer Hunter testified that he was on duty with Officer
     Walsh [on the date in question, riding in the back seat of the
     unmarked police vehicle]. [Officer Hunter] state[d] that [after
     Robinson had fled into the abandoned building, Officer Hunter]
     followed [Robinson] … and found him in [a] second floor
     bedroom[.      Officer Hunter testified that upon entering the
     bedroom, he discovered that “[Robinson] lost a bundle of 15 …
     clear, Ziploc packets containing [a] blue-glassin[e] insert,
     containing heroin stamped ‘cartel’ ….” N.T., 8/7/14, at 20.
     Officer Hunter also discovered $189 in cash on Robinson’s
     person.] On cross[-]examination, Officer Hunter state[d] that he
     did not see any drug transactions[,] and that he was with
     [O]fficer Walsh in the unmarked police vehicle. They were
     driving down the street and then they all jumped out of the car.

Trial Court Opinion, 1/22/15, at 2-3 (footnotes added; citations to record

omitted).

     Following Robinson’s arrest, the Commonwealth charged him with

possession of a controlled substance with intent to deliver, possession of a


2
  Johnson had attempted to flee the police by exiting a second story window,
and hanging on electrical wires.        Johnson fell to the ground, and
simultaneously discarded seven baggies of heroin bearing the stamp
“cartel.”


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controlled substance, and criminal conspiracy. Robinson subsequently filed a

Motion to suppress the evidence seized by police. 3 The trial court conducted

a suppression hearing, at which both Officers Walsh and Hunter testified.

Robinson did not present any witnesses.     At the close of the hearing, the

trial court granted Robinson’s suppression Motion, concluding that the

evidence was inadmissible as being the product of an unlawful police chase

and “forced abandonment.”

      The Commonwealth timely filed a Notice of Appeal.4       The trial court

ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The Commonwealth timely filed a Concise

Statement, after which the trial court issued its Pa.R.A.P. 1925(a) Opinion.

      The Commonwealth presents the following issue for our review:

      Where an experienced officer saw [Robinson] make three hand-
      to-hand transactions in which he provided small objects in
      exchange for currency[,] in a high drug crime area[,] and where,
      in response to his co-conspirator yelling “cops,” [Robinson] ran
      into an abandoned property and discarded fifteen packets of
      heroin, did the [trial] court err in suppressing the drugs based
      on a theory of forced abandonment?


3
  We note that Robinson’s Motion to suppress is not contained in the certified
record, nor is it listed on the trial court’s docket. However, the trial court
stated in its Pa.R.A.P. 1925(a) Opinion that Robinson had filed a suppression
Motion prior to the date scheduled for trial.
4
   In filing this interlocutory appeal, the Commonwealth complied with
Pa.R.A.P. 311(d), which provides that “[i]n a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as
of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”


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Brief for the Commonwealth at 4. Robinson did not file a brief on appeal.

      This Court has summarized the proper scope and standard of review,

when reviewing the grant of a suppression motion, as follows:

            When the Commonwealth appeals from a suppression
      order, we follow a clearly defined standard of review and
      consider only the evidence from the defendant’s witnesses
      together with the evidence of the prosecution that, when read in
      the context of the entire record, remains uncontradicted. The
      suppression court’s findings of fact bind an appellate court if the
      record supports those findings.         The suppression court’s
      conclusions of law, however, are not binding on an appellate
      court, whose duty is to determine if the suppression court
      properly applied the law to the facts.

Commonwealth v. Boyd, 17 A.3d 1274, 1276 (Pa. Super. 2011) (citations

omitted).

      In its Rule 1925(a) Opinion, the trial court advanced the following

rationale in support of its suppression ruling:

            [“]Although abandoned property may normally be obtained
      and used for evidentiary purposes by the police, such property
      may not be utilized where the abandonment is coerced by
      unlawful police action.” Commonwealth v. Tillman, 423 Pa.
      Super. 343, 621 A.2d 148, 150 (1993)[.] [“]In considering
      whether the abandoned or relinquished property is admissible,
      our [S]upreme [C]ourt has held that initial illegality taints the
      seizure of the evidence because in such a situation it cannot be
      said that there was a voluntary abandonment or relinquishment
      of the evidence. No improper or unlawful act can be committed
      by the officers prior to the evidence being abandoned or
      relinquished.[”] [Commonwealth v.] Pizarro, 723 A.2d [675,]
      679 [(Pa. Super. 1998) (emphasis supplied by trial court;
      quotation marks, brackets and ellipses omitted).]

             When the record in this matter is reviewed, and both
      [O]fficer[] [Walsh’s and Officer Hunter’s] testimony is compared,
      it seems implausible that[,] on one hand, a travelling[,]
      unmarked car on routine patrol can stop, [and] release its


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J-S46038-15


     officers for a chase of potential defendants[,] while on the other
     hand, remain stopped for a surveillance of individuals engaged in
     drug dealing up an alleyway (for at least 3 transactions). There
     is no identification of [the alleged drug] buyers and no
     description of other individuals associated with [Robinson]. …
     Accordingly, this [c]ourt properly granted [Robinson’s] Motion to
     Suppress Evidence based upon forced abandonment.

Trial Court Opinion, 1/22/15, at 3-4 (some citations omitted).

     The Commonwealth argues that the trial court’s ruling concerning

forced abandonment is erroneous, since the police had reasonable suspicion

that Robinson was engaged in criminal activity, and therefore, had lawful

authority to pursue him and seize the narcotics that he had abandoned.

Brief for the Commonwealth at 8 (citing Commonwealth v. Williams, 410

A.2d 835, 836 (Pa. Super. 1979) (stating that “[a]bandoned property may

be obtained and used for evidentiary purposes by the police. The evidence

must be suppressed only if the abandonment has been coerced by unlawful

police action.”). The Commonwealth asserts that the circumstances of the

instant case are very similar to those presented in Commonwealth v.

Cook, 735 A.2d 673 (Pa. 1999).       Brief for the Commonwealth at 9.     In

Cook, police officers in an unmarked vehicle were patrolling a high crime

area, when they observed the defendant engage in a suspected hand-to-

hand drug transaction on a street corner. Id. at 674. The defendant fled on

foot upon being approached by the police, and discarded items while

running, including crack cocaine.   Id.   Our Supreme Court held that the

defendant’s flight in a high crime area, along with a police officer’s



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observation of suspicious hand-to-hand transactions, established reasonable

suspicion, and the police thus lawfully pursued the defendant and seized the

abandoned drugs. Id. at 677-78.

     This Court set forth the law concerning reasonable suspicion, and

seizure of a fleeing suspect who had abandoned property, as follows:

           Article I, § 8 of the Pennsylvania Constitution and the
     Fourth Amendment of the United States Constitution afford
     protections against unreasonable searches and seizures. Among
     the protections is the requirement that an officer have
     reasonable suspicion before an investigatory stop.

            Our [Pennsylvania S]upreme [C]ourt has interpreted [the]
     Article I, § 8 protection more broadly than the Fourth
     Amendment[,] and has found that a seizure occurs when an
     officer gives chase.     Under Pennsylvania law, any items
     abandoned by an individual under pursuit are considered fruits of
     a seizure. Those items may only be received in evidence when
     an officer, before giving chase, has at least the reasonable
     suspicion necessary for an investigatory stop. …

            In deciding whether reasonable suspicion exists for an
     investigatory stop, our analysis is the same under both Article I,
     § 8 and the Fourth Amendment. The fundamental inquiry is an
     objective one, namely, whether the facts available to the officer
     at the moment of the intrusion warrant a man of reasonable
     caution in the belief that the action taken was appropriate. This
     assessment, like that applicable to the determination of probable
     cause, requires an evaluation of the totality of the
     circumstances, with a lesser showing needed to demonstrate
     reasonable suspicion in terms of both quantity or content and
     reliability.

Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010)

(citation and brackets omitted).

     In the instant case, according to the Commonwealth, Officers Walsh

and Hunter “would have been justified in pursuing [Robinson] based upon


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his flight in a high crime area alone, even if Officer Walsh had not seen him

engage in three suspicious transactions.” Brief for the Commonwealth at 10.

We agree.

      In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States

Supreme Court held that a police officer is justified in reasonably suspecting

that an individual is involved in criminal activity where that individual (1) is

present in a high crime area; and (2) engages in unprovoked, headlong

flight after noticing the police.   Id. at 124-25.5   The Supreme Court ruled

that the existence, in combination, of these two factors alone is sufficient to

establish reasonable suspicion.       Id.   Our Pennsylvania Supreme Court

subsequently recognized the significance of the Wardlow holding, stating

that “it is evident that unprovoked flight in a high crime area is sufficient to

create a reasonable suspicion to justify a Terry[6] stop under the Fourth

Amendment.”     In re D.M. II, 781 A.2d 1161, 1164 (Pa. 2001) (footnote

added); see also id. at 1165 n.2 (applying Wardlow and declining to adopt


5
  In Wardlow, a four-car police caravan was investigating drug activity in
an area of Chicago known for heavy narcotics trafficking. Wardlow, 528
U.S. at 121. One of the officers observed the defendant holding an opaque
bag. Id. The officers did not observe any conduct suggesting that the
defendant was in possession of contraband. See id. When the defendant
saw the police, he immediately fled. Id. at 122. The police apprehended
him, and during a pat-down search for weapons, recovered a gun. Id. The
Supreme Court affirmed the denial of the defendant’s motion to suppress,
reversing the decisions to the contrary by the Illinois courts of appeal. Id.
at 122-24.
6
 Terry v. Ohio, 392 U.S. 1 (1968) (holding that police may stop and frisk a
person where they have reasonable suspicion that criminal activity is afoot).


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greater state constitutional rights).7 Later, this Court clarified that, in order

for the holdings of Wardlow and D.M. II to apply, it must be established

that “the suspect fled upon being confronted by the police or recognizing

police presence in the immediate area.” Commonwealth v. Washington,

51 A.3d 895, 898 (Pa. Super. 2012); see also id. (stating that “the suspect

must know he is running from law enforcement before a reasonable

suspicion can attach.”).

      In the instant case, Officer Walsh testified at the suppression hearing

that he had worked in the police district encompassing the arrest area for 12

years, and that the arrest area is a “high crime, high narcotics area.” N.T.,

8/7/14, at 12. Officer Walsh further stated that he had personal experience

with the high rate of crime in the arrest area, having previously made

“between 25 and 50 arrests” in the immediate area. Id. at 11; see also id.

(wherein Officer Walsh stated that he had received specialized training

regarding the sale of narcotics in the City of Philadelphia).       Additionally,

Robinson fled upon being alerted by Johnson to the presence of police at the

scene.   See id. at 8, 17.    Accordingly, in determining whether these two

factors, in conjunction, established reasonable suspicion under Wardlow



7
   Neither the Court in D.M. II nor the Wardlow Court distinguished
between “unprovoked” and “provoked” flight. It appears that their inclusion
of the term unprovoked is merely superfluous. Indeed, it is clear that it is
flight provoked by a defendant’s sighting of police that is the relevant factor,
as it is a suspect’s flight and attempted avoidance of police that increases
the degree of suspicion of the suspect’s involvement in criminal activity.


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and its progeny, all that must be established is that Robinson knew that he

was running from police, pursuant to Washington, supra.

      We    conclude   that   the   circumstantial   evidence   establishes   that

Robinson knew that he was running from the police. Officer Walsh testified

that when Johnson looked in the direction of the police, he yelled “cops,”

alerting Robinson and the other individuals in the alleyway to the police

presence.   N.T., 8/7/14, at 8, 17.8      Immediately thereafter, Robinson and

Johnson ran into the rear of the abandoned building at 3016 B Street. Id.

      Accordingly, Robinson’s flight from police in a high crime area, absent

more (i.e., even without Officer Walsh’s observation of Robinson engaging in

three suspicious hand-to-hand transactions), was sufficient to establish

reasonable suspicion.9 See Wardlow, supra (holding that the defendant’s

flight from police in a high crime area established reasonable suspicion, even

where the police did not articulate any specific indications that the defendant

possessed contraband); see also Commonwealth v. Miller, 876 A.2d 427,

430-31 (Pa. Super. 2005) (where the defendant was standing with a group

other men on a street corner, and fled from police upon their approaching

the group, holding that the defendant’s presence in a high crime area,

8
 Though Officer Hunter did not testify to overhearing Johnson say “cops,”
Officer Hunter did not contradict Officer Walsh’s testimony in this regard.
9
 Therefore, we need not address the trial court’s determination in its Rule
1925(a) Opinion concerning (1) the discrepancies in the testimony of
Officers Walsh and Hunter as to whether they saw the suspicious hand-to-
hand transactions; and (2) the fact that none of the alleged drug buyers
were identified. See Trial Court Opinion, 1/22/15, at 4.


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coupled with his flight, was alone sufficient to establish reasonable

suspicion); see also id. at 431 n.4 (observing that “[the defendant’s]

actions prior to his flight, whether lawful or unlawful, do not affect our

holding.”).

      We therefore conclude that the trial court erred by granting Robinson’s

Motion to suppress.     The totality of the circumstances demonstrate that

police had reasonable suspicion to believe that Robinson was engaged in

criminal activity when they began their pursuit of him following his flight in a

high crime area. See Wardlow, supra.

      Judgment    of   sentence   reversed.     Case   remanded    for   further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




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