J-S26008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.X.P., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: D.X.P.

                                                    No. 1256 MDA 2014


               Appeal from the Dispositional Order June 2, 2014
                 In the Court of Common Pleas of York County
              Juvenile Division at No(s): CP-67-JV-0000222-2014


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                FILED JULY 10, 2015

       D.X.P. appeals from the dispositional order entered following an

adjudication of delinquency for the offenses of possession of a firearm

prohibited, carrying a firearm without a license, and possession of a firearm

by a minor, flight to avoid apprehension, and disorderly conduct.1 The sole

issue raised on appeal is a challenge to the court’s suppression ruling. Based

upon the following, we affirm, albeit on other grounds.

       The facts adduced at the suppression hearing and accepted by the

court are set out on the record, as follows:

       The Court has heard testimony and has accepted into evidence a
       number of items. In addition there was a stipulation that was
____________________________________________


1
  18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6110.1(a), 5126(a), and
5503(a)(4), respectively.
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     made between the parties. That stipulation involves the minor’s
     age, the ballistics report, which indicates that the gun in
     question was functional, and a report from the State Police
     indicating that [D.X.P.] did not have a license to carry a firearm.

     The Commonwealth’s first witness was Officer [Daniel] Kling with
     York City Police Department. He has been with York City Police
     Department three and a half years. He stated that on May 1,
     2014, he was on duty with two other officers. All three were on
     bikes and in uniform. It was approximately 5:50 p.m. when he
     received the report from County Control that there were multiple
     calls for an active fight at 26 West South Street. No descriptions
     were given of the individuals involved. At the time of the call
     they were approximately a block away. They could actually see
     the vicinity of the area, and it did not appear that there was a
     fight going on, although there was a large group of people.

     He stated they got to the area within 30 seconds. He testified
     that the area in question is a high crime area, that fights occur
     every day in the park which is adjacent to this area. There are a
     number of drug and firearm arrests as well. He stated that when
     he came upon the scene there were a group of people yelling
     around the corner that the police were coming.

     As they came around the corner there were a group of three
     young males, one of which was [D.X.P.]. The officer stated that
     the individuals were tracking the police, looking at them, turning
     around and walking faster and then constantly looking back at
     them.

     The officer stated as he got behind them he asked them to stop.
     [D.X.P.], who was in the middle of the group, then started to
     flee. He stated that as he was running he was grabbing his pants
     with his left hand. They pursued on bike. The pursuit lasted
     approximately 30 seconds to a minute. They went through
     traffic, almost getting hit by a van.

     During the course of the pursuit one of the officers had come
     around and approached the Juvenile from a different direction.
     The Juvenile was coming down an alleyway and was confronted
     by this officer who attempted to tase him. As the Juvenile was
     coming at her she yelled that he had a gun. At that time it
     became evident to Officer Kling that [D.X.P.] had a firearm in his
     right hand. He was again told to stop. He observed [D.X.P.]

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       switch the gun into his other hand. He ran into a group of 30
       people and went through the middle of the group.

       [D.X.P.] then came up to a trash can, put his hand out, and
       dropped the gun into the trash can. [D.X.P.] went an additional
       15 feet, stopped, and put his hands in the air where he was
       apprehended.

       The firearm was retrieved by the other officer. It had six live
       rounds in it. … Officer Glatfelter testified, in essence, to the
       same information as Officer Kling.

       Admitted into evidence were four exhibits. Exhibit 1 is the
       firearm in question; Exhibit 2 is the six rounds; Exhibit 3 is the
       Pennsylvania State Police report; and Exhibit 4 is the report
       indicating that [D.X.P.] does not have a license to carry a
       firearm.

Order, dated 6/2/2014, filed 6/6/2014, at 2–5. See also N.T., 6/2/2014, at

38–40.     The juvenile court determined that the officers had reasonable

suspicion to pursue D.X.P., and denied the suppression motion. Thereafter,

the court adjudicated D.X.P. delinquent, and entered a dispositional order

placing him on formal probation and into the Juvenile Drug Court Program, if

accepted, and if not, he was to be placed at the Forestry Camp #3 First Step

Program. This appeal followed.2

       D.X.P. challenges the order denying his motion to suppress physical

evidence. In reviewing such claims, we apply a well-established standard of

review:

       Our standard of review in addressing a challenge to the denial of
       a suppression motion is
____________________________________________


2
  D.X.P. timely complied with the order of the juvenile court to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.



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         limited to determining whether the suppression court’s
         factual findings are supported by the record and whether
         the legal conclusions drawn from those facts are correct.
         Because the Commonwealth prevailed before the
         suppression court, we may consider only the evidence of
         the Commonwealth 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 suppression
         court’s factual findings are supported by the record, we
         are bound by these findings and may reverse only if the
         court’s legal conclusions are erroneous. The suppression
         court’s legal conclusions are not binding on an appellate
         court, whose duty it is to determine if the suppression
         court properly applied the law to the facts. Thus, the
         conclusions of law of the courts below are subject to our
         plenary review.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (citation

omitted), appeal denied, ___ A.3d ___ (Pa. May 13, 2015).

      D.X.P. contends “the officers did not have reasonable suspicion of

D.X.P. being involved in criminal activity when they ordered D.X.P. to stop”

and, therefore “the gun should have been suppressed as fruit of the

poisonous tree as the officers did not have reasonable suspicion to order

D.X.P. to stop and the gun was abandoned by coercion.” D.X.P.’s Brief at

10.   D.X.P. argues further:   “If this Honorable Court finds that the initial

order for D.X.P. to stop created a mere encounter as opposed to an

investigative detention, D.X.P. asserts that the officers did not have the

reasonable suspicion to seize D.X.P. by pursuing him and the abandoned gun

should have been suppressed as fruit of the poisonous tree.” Id. at 16.

      The principles that guide our review are as follows:


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     “‘Interaction’ between citizens and police officers, under search
     and seizure law, is varied and requires different levels of
     justification depending upon the nature of the interaction and
     whether or not the citizen is detained.” Commonwealth v.
     DeHart, 745 A.2d 633, 636 (Pa. Super. 2000). The three levels
     of interaction are: mere encounter, investigative detention, and
     custodial detention. Id.

        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.

     Id. (internal citations and quotation marks omitted).

        Reasonable suspicion exists only where the officer is able
        to articulate specific observations which, in conjunction
        with    reasonable    inferences   derived   from    those
        observations, led him reasonably to conclude, in light of
        his experience, that criminal activity was afoot and that
        the person he stopped was involved in that activity.
        Therefore, this Court must make an objective inquiry,
        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.

     Commonwealth v. Plante, 2006 PA Super 376, 914 A.2d 916,
     922 (Pa. Super. 2006) (internal citations and quotations
     omitted).


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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."
      Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa. Super.
      2002).

         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 1201-1202 (internal citations and quotations omitted).

Commonwealth v. Ngyuen, ___ A.3d ___, ___ [2015 PA Super 98] (Pa.

Super. April 27, 2015) (quotations and citations omitted).

      At the hearing, Officer Kling testified regarding his interaction with

D.X.P. as follows:

      At approximately 5:50 p.m. on May 1st [2014] myself, Officer
      Glatfelter, and Officer Vogel were working in the South End
      Neighborhood Enforcement Unit. We were in full bike uniform
      and riding bikes that day.

      At that time we were dispatched to a fight in the first block of
      West South Street, specific address was 26 West South Street,
      and at that time we were in the first block of East South Street,
      so we were only about a block away.

      From our location we could see a small group of people in front
      of that residence, but I did not see anybody actively fighting at
      that time.    As we came into the area we approached a small
      group of people standing on the corner. At that time I could see


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     them telling everybody else around the corner that the police
     were coming.

     As I rounded the corner, I [saw] a group of people, I can’t tell
     you how many, but there was a group of people there, and they
     were all walking away from me. They were walking southbound
     on Lindberg Avenue, and at the front of this group I saw a
     group of three young male juveniles that were walking at
     a faster gait than everybody else. They were turning their
     heads to look at us. They would turn their heads back and
     look forward and increase their pace and then they would
     look back at us and watch where myself and Officer
     Glatfelter were.

     At that time I observed that they were the only ones that
     were looking at us and watching every move that we
     made. So I got behind them, the group of three. They
     were on the sidewalk on the east side of Lindberg Avenue.
     I got behind this group.      Officer Glatfelter went out
     around. He was on Lindberg Avenue and attempted to get
     in front of the group of three as he knew I was going to
     attempt to stop them.

     As I got behind them I told all three individuals to stop,
     police. I told them that I wanted to talk to them, to stop.
     One juvenile in particular, [D.X.P.], wh[o] is seated at the
     defense table wearing all black, he was standing in the
     middle of the group of three. He weaved in between the
     two and began to run south on Lindberg Avenue. The
     other two males stayed there, but [D.X.P.] began to run.
     I saw him grab ahold of his pants with his left hand, and
     he took off running.

     He ran south on Lindberg Avenue until he got to Charles Street.
     At that time he ran east on Charles Street to George Street, and
     at that time myself and Officer Glatfelter pursued him on bikes.
     Officer Vogel, she also pursued on bike, but she took a different
     route. I was calling the pursuit out on the radio as we were
     chasing him.

                                   ****

     When [D.X.P.] turned left onto Snyder Place he met with Officer
     Vogel. She was coming the opposite direction in an attempt to

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     meet with him. When [D.X.P.] turned the corner, Officer Vogel
     did dismount her bike, she drew her Taser, and she attempted to
     Tase him. She missed with the Taser.

     At this point myself and Officer Gla[t]felter were only 20 feet
     behind [D.X.P.], I would say just an estimate. We were in close
     proximity. When she Tased him she yelled out, Gun, and at that
     point I noticed that [D.X.P.] was holding a firearm with his right
     hand by the barrel. With his left hand he was holding up his
     pants and with the right hand he was holding the barrel of this
     revolver, it was a long barrel revolver, and he was still running.

                                   ****

     At that point myself and Officer Gla[t]felter both dr[e]w our
     firearms on him, and we continued to pursue him on bikes. …
     [D.X.P.] switched hands or switched the gun in his hands to his
     left hand, and at that time he grabbed the gun by the grip and
     he turned towards me. When he turned towards me I could see
     his face.   I was telling him, Put it down, put it down, put it
     down, drop the gun. And at that point he turned back around,
     turned the bend onto Lindberg Avenue to the exact location
     where he began to run in the first place.

                                   ****

     When he goes through this crowd of people … it was probably 20
     feet I’m behind him. I see his, with his left hand he holds it out,
     and in front of this residence, right past this group of people
     there’s like a big trash can, like a 55-gallon trash can. He holds
     the gun out and drops it in the trash can, goes about 15 more
     feet, throws his hands up in the air and slows his gait, he slows
     down to a slow walk. He turns to me. I yell at Officer Glatfelter
     that there’s a gun in the trash can, and I point at the trash can,
     and I go directly towards [D.X.P.] I dismount my bike, … and I
     took [D.X.P.] into custody.

N.T., 6/2/2014, at 4–10 (emphasis supplied). Officer Kling further testified

that the area was a high crime area where “[t]here are multiple drug deals

that occur” and “fights that occur in the park.”   Id. at 11–12. He stated,




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“We make multiple arrests in the park with firearms, with drugs, [and] with

disorderly people.” Id. at 12.

     Here, the court reasoned:

     The first issue the Court needs to address is whether the request
     to stop and subsequent pursuit by the police officers constitutes
     a seizure. If it was not a seizure then the weapon would be
     properly lawfully seized by the police officer. If it does constitute
     a seizure, then the seizure is considered to be coerced and the
     officer must demonstrate either probable cause to make the
     seizure or have reasonable suspicion to stop and frisk.

                                    ****

     … Our Supreme Court has determined that due to heightened
     privacy considerations in Pennsylvania, a police officer’s pursuit
     of a person fleeing is a seizure for purposes of Article 1, Section
     8 of the Pennsylvania Constitution. [Commonwealth v. Matos,
     672 A.2d 769 (Pa. 1996)].

     Thus, pursuant to Matos, any contraband discarded during a
     pursuit is abandoned by coercion and the officer must
     demonstrate either probable cause to make the seizure or
     reasonable suspicion to stop and frisk. Therefore, based upon
     Matos the inquiry in this case becomes whether the police
     officers demonstrated reasonable suspicion at the time they
     began pursuit of [D.X.P.].

     In order to demonstrate reasonable suspicion, the police officer
     must be able to point to specific and articulable facts and
     reasonable inferences drawn from those facts in light of the
     officer’s experience. Caselaw has also established that certain
     facts taken alone do not establish reasonable suspicion. For
     instance, in Matos, it was determined that flight alone does not
     constitute reasonable suspicion; in Commonwealth [v.]
     Kearney[, 601 A.2d 346 (Pa. Super. 1992),] mere presence in a
     high crime area did not constitute reasonable suspicion; and
     under Commonwealth [v.] Hawkins[, 692 A.2d 1068 (Pa.
     1997),] an anonymous tip alone did not constitute reasonable
     suspicion.




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        [That] being stated, the determination of reasonable suspicion
        requires an evaluation of the totality of the circumstances, with a
        lesser showing needed to demonstrate reasonable suspicion in
        both terms of quality and content and reliability than probable
        cause.

        In the instant matter there is a combination of factors present
        which would warrant reasonable suspicion by the officer. As
        stated, there was an anonymous tip, in fact several anonymous
        tips made to police regarding a fight in the area; the fact that
        this was a high crime area; the actions taken by the juveniles in
        tracking the police officers; and then finally the flight by the
        Juvenile. All of these factors taken collectively constitute
        reasonable suspicion for the officer to pursue the Juvenile.

Order, dated 6/2/2014, filed 6/6/2014, at 5–8. See also N.T., 6/2/2014, at

40–43. Contrary to the juvenile court, we conclude police lacked reasonable

suspicion to stop and pursue D.X.P.

        In this case, the facts show that D.X.P.’s detention commenced when

Officer Kling issued the command to stop.            That is, when Officer Kling

approached the three males from behind on bike, and told them “to stop,

police … I want[] to talk …, to stop,”3 a reasonable person in D.X.P.’s

position would not have felt free to depart.        Commonwealth v. Ranson,

103 A.3d 73, 77 (Pa. Super. 2014) (appellant subjected to investigative

detention     when    uniformed      officers   commanded   appellant   to   stop);

Commonwealth v. Key, 789 A.2d 282, 288 (Pa. Super. 2001) (“When an

officer, by means of physical force or show of authority, has restrained the

liberty of an individual, a ‘seizure’ has occurred.”). In fact, the other two
____________________________________________


3
    N.T., 6/2/2014, at 6.



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individuals with D.X.P. did stop. Therefore, we conclude an investigative

detention occurred at that moment.

      The next part of the inquiry is whether police had reasonable suspicion

to support the detention. Here, the officers were on bike patrol when they

received a county control report that there were multiple calls regarding a

fight at 26 West South Street. At that time, police were a block away and

they could see people outside the residence, but did not see a fight.       When

they arrived at the scene 30 seconds later, people at the corner were yelling

to others around the corner that police were coming. The officers rounded

the corner and saw a group of people walking away. Officer Kling spotted

three young males, including D.X.P., at the front of the group, watching

police over their shoulders and walking at a faster gait. We conclude these

facts do not establish reasonable suspicion to justify the stop of D.X.P.

      Although police received the report of the fight from county control, no

descriptions of individuals were provided, and police saw no evidence of a

fight. The only pertinent factors in this case were the high crime area, the

three males’ actions in looking back at police, and their fast paced gait as

they walked away from police and the reported scene of a fight. However,

walking away from police officers in a high crime area is not sufficient to

justify an investigative detention of that individual. See In the Interest of

J.G., 860 A.2d 185, 187 (Pa. Super. 2004) (“[P]olice did not establish a

reasonable suspicion of criminal activity to justify an investigatory stop and


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search of Appellant, where the only evidence of criminal wrongdoing was

Appellant’s presence in a high crime area combined with his decision to ‘walk

away’ from the police officers upon seeing their approach”). Further, while

Officer Kling testified the three males were turning their heads to watch

police, we cannot conclude that this conduct, along with walking away

quickly from police in a high crime area, were sufficient to provide Officer

Kling with a reasonable belief that D.X.P. was engaged in illegal behavior.4

Therefore, we conclude that the officers lacked reasonable suspicion to

justify the stop and pursuit of D.X.P.

       Our inquiry, however, does not end here. The Commonwealth argues

that “even if the police had no cause to chase [D.X.P.], [D.X.P.’s] actions of

running through heavy traffic causing vehicles to swerve, and the juvenile

possessing a handgun constitute two intervening acts by the juvenile

____________________________________________


4
  We note that this court has found reasonable suspicion where, in addition
to evasive behavior and a high crime area, there is other indication of
criminal activity. See Commonwealth v. Carter, 105 A.3d 765, 774 (Pa.
Super. 2014) (en banc), appeal denied, ___ A.3d ___ (Pa. June 17, 2015)
(police had reasonable suspicion where defendant “was in a high-crime area,
at night, with a weighted and angled bulge in his coat,” “alerted to the
officers’ presence intentionally turned his body away from them, at least
three times, to conceal the bulge,” and “walk[ed] away from the known drug
corner whenever the officer[s] passed by it”). See also Commonwealth v.
Foglia, 979 A.2d 357 (Pa. Super. 2009) (en banc), appeal denied, 990 A.2d
727 (Pa. 2010) (reasonable suspicion found where there was an anonymous
tip, evasive behavior in looking back and walking away, high crime area, and
hand movements that police recognize as associated with the secreting of a
weapon).




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defendant which granted the police probable cause to seize the weapon.”

Commonwealth’s Brief at 11, citing Commonwealth v. Hall, 929 A.2d 1202

(Pa. Super. 2007).

       As the Commonwealth asserts, this Court, in Hall, expressly stated

that “[e]ven when a police officer’s initial stop or pursuit of an individual is

not based upon either a reasonable suspicion of crime or probable cause,

subsequent actions by the detainee during the encounter may be the basis

for a lawful arrest and the subsequent denial of a suppression motion

regarding evidence seized after the arrest.” Id. at 1207.5 Applying Hall, we

find that D.X.P.’s behavior subsequent to the stop and pursuit supplied

probable cause which allowed the officers to seize the handgun in question.

____________________________________________


5
  Citing Commonwealth v. Lynch, 773 A.2d 1240, 1246–48 (Pa. Super.
2001) (holding that although the police lacked reasonable suspicion to
initially pursue the appellant, the appellant’s pointing a weapon at the police
and subsequent abandonment of the weapon during the pursuit gave police
probable cause to arrest the appellant, and the suppression court
accordingly did not err by permitting testimony regarding the appellant’s
abandonment and the police officers’ recovery of the weapon, even though
the initial pursuit was without a reasonable basis or suspicion);
Commonwealth v. Britt, 691 A.2d 494, 496–98 (Pa. Super. 1997) (holding
that although the police lacked probable cause to initially detain the
appellant, the appellant’s subsequent flight, resisting arrest, and causing
injury to one of the officers provided the police with probable cause to arrest
the appellant, and, thus, the suppression court accordingly erred by
suppressing evidence seized, even though the initial detention was made
without probable cause).

    We note that Lynch has been overruled on other grounds, as stated in
Commonwealth v. Foglia, supra, 979 A.2d at 361 n.2.




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        Here, during the chase, D.X.P., a juvenile, brandished a firearm in

violation of 18 Pa.C.S. § 6110.1 (“Possession of firearm by minor”).6

Because police observed him committing this offense, the officers had

probable cause to arrest D.X.P. and seize the firearm.7      Accordingly, the

juvenile court did not err in denying the motion to suppress the firearm.8

        Dispositional order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




____________________________________________


6
    D.X.P. was 16 years of age at the time of the offense.
7
  We agree with the Commonwealth that “[h]ad the juvenile merely fled, or
abandoned the clothing or bag containing a handgun without displaying its
criminal nature, he may have avoided giving police additional probable
cause.” Commonwealth’s Brief at 12.
8
  “This Court is not bound by the rationale of the trial court, and we may
affirm the trial court on any basis.” Commonwealth v. Williams, 73 A.3d
609, 617 n.4 (Pa. Super. 2013).



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